Hutton v The Queensland Police Service
[2012] QDC 368
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- Unreported Judgment
- Hutton v The Queensland Police Service[2012] QDC 368
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Hutton v The Queensland Police Service[2012] QDC 368
Hutton v The Queensland Police Service[2012] QDC 368
DISTRICT COURT OF QUEENSLAND
CITATION: | Hutton v The Queensland Police Service [2012] QDC 368 |
PARTIES: | Peter Drew Hutton (Appellant) v The Queensland Police Service (Paul Vanderham) (Respondent) |
FILE NO/S: | Appeal Number Dalby 1/12 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Dalby |
DELIVERED ON: | 21 December 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 October 2012 |
JUDGE: | Kingham DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – ERROR OF LAW – FINDING OF FACT – Where the appellant was convicted of an offence under the Petroleum & Gas (Production & Safety) Act 2004 s 805 – where petroleum authority holder must warn a person if it intends to proceed with an activity – whether the requirement to warn arose in the circumstances of this case APPEAL – ERROR OF LAW – STATUTORY INTERPRETATION – Where the appellant was convicted of an offence under the Petroleum & Gas (Production & Safety) Act 2004 s 805 – where petroleum authority holder must warn a person that it is an offence to obstruct without reasonable excuse and that the holder considers the person’s conduct is an obstruction – where a warning was given – whether the warning complied with the requirements of the Act APPEAL – ERROR OF LAW – STATUTORY INTERPRETATION – Where the appellant was convicted of an offence under the Petroleum & Gas (Production & Safety) Act 2004 s 805 – where petroleum authority holder must warn a person that it is an offence to obstruct without reasonable excuse and that the holder considers the person’s conduct is an obstruction – whether giving a compliant warning is a necessary precondition to the offence being committed. Criminal Code Section 3 Petroleum & Gas (Production & Safety) Act 2004 Sections 3(1)(j), 805, 837. Cox v Robinson [2000] QCA 454 Fox v Percy (2003) 197 ALR 201 Mbuzi v Torcetti [2008] QCA 231 R v Adams (1935) 53 CLR 563 Rowe v Kemper [2008] QCA 175 Teelow v Commissioner of Police [2009] QCA 84 |
COUNSEL: | A Kimmins for the appellant. A Edwards for the respondent. |
SOLICITORS: | Morgan Wholly Solicitors for the appellant. Queensland Police Service for the respondent. |
- [1]In recent years the Coal Seam Gas industry has rapidly developed in South Queensland. This has not been warmly embraced by landholders, who are concerned about the impact on their agricultural and pastoral activities. Environmentalists oppose this carbon resource being extracted because of the role played by carbon fuels in global warming and their fears the process of extraction will pollute valuable water resources.
- [2]Some environmentalists and rural landholders have come together under a loose coalition styled as the Lock the Gate campaign, which has actively resisted the expansion of the CSG industry.
- [3]Queensland Gas Company (QGC) holds a petroleum authority which permits it to enter and undertake works on Peranga Station a rural property at Wieambilla near Tarain the district of Chinchilla. On 29thMarch 2011, QGC’s contractor, Murphy’s Pipe and Civil, was working on the property adjoining Peranga clearing a path to enable a pipe line to be laid. They had instructions from QGC to undertake works on Peranga.
- [4]Mr Hutton is a passionate and prominent advocate in the Lock the Gate campaign. On the 29thhe was with a group of protesters on Peranga Station. They were there with the permission of the property owner, Paul Keating (not the former Prime Minister of Australia).
- [5]Mr Keating and QGC had reached agreements about compensation for QGC’s activities on his property. He was in dispute with the company about whether the agreements encompassed the work about to be undertaken. Before the protest commenced, he told Mr Hutton that the imminent works were not covered by their agreements. Mr Hutton did not enquire further.
- [6]The protesters were located on a right of way on Peranga. The works, which involved land clearing in that vicinity, could not proceed safely while the protesters were there. QGC instructed Murphy’s not to enter Peranga until the protesters had moved on.
- [7]The police were in attendance on 29thand sought to facilitate communication between the protesters and QGC. Mr Hutton was directly involved in discussions with Bryan Naylor, a Project and Construction Manager of QGC. Mr Naylor tried to give representatives of the protesters a written and then an oral warning about their activities.
- [8]All protesters, except Mr Hutton, decided to leave the property. Mr Hutton sat down on the track which Murphy’s had to cross to commence work on Peranga. At that point the police arrested him for obstructing QGC from carrying out authorised activities on Peranga station.
- [9]Mr Hutton was convicted after a summary trial before a Magistrate sitting over two days in Chinchilla and Dalby. He has appealed both the conviction and sentence.
- [10]Mr Hutton’s appeal raises questions about findings made by the learned Magistrate who presided over the trial and his interpretation of s 805 of the Petroleum & Gas (Production & Safety) Act 2004.
- [11]That section provides:
(1) A person must not, without reasonable excuse, obstruct a petroleum authority holder from—
(a) entering or crossing land to carry out an authorised activity for the petroleum authority if chapter 5, part 2 or 3, to the extent the part is relevant, has been complied with in relation to the entry; or
(b) carrying out an authorised activity for the petroleum authority on the land.
Maximum penalty—500 penalty units.
(2) If a person has obstructed a petroleum authority holder from carrying out an activity mentioned in subsection (1) and the holder decides to proceed with the carrying out of the activity, the holder must warn the person that—
(a) it is an offence to obstruct the holder unless the person has a reasonable excuse; and
(b) the holder considers the person’s conduct is an obstruction.
(3) In this section—
obstruct includes assault, hinder, resist and attempt or threaten to assault, hinder or resist.
- [12]The learned Magistrate concluded QGC was not required to give a warning to Mr Hutton because it had decided not to proceed with the works at the time Mr Hutton committed the offence. Mr Hutton says that conclusion is wrong on the evidence. The QPS argued the finding was correct.
- [13]Assuming QGC was required to give a warning, his Honour considered QGC had sufficiently complied with the requirements of s 805. The terms of the warning given are not in dispute on appeal. Mr Hutton says it was inadequate. The QPS agrees there was not strict compliance with s 805(2), but given the attempts made by Mr Naylor to give the warning in full and Mr Hutton’s apparent familiarity with the terms of the warning that Mr Naylor was trying to give, nothing more was required.
- [14]Next, Mr Hutton argued that the learned Magistrate was wrong to find that he did not have a reasonable excuse for his actions.
- [15]Finally, Mr Hutton submitted his sentence, a fine of $2,000, was manifestly excessive, particularly having regard to the time he spent in custody in relation to the charge.
- [16]The issues on appeal are:
- Was it necessary to give a warning?
- If so, was the warning given sufficient?
- If not, what was the consequence of the failure to warn?
- Did Mr Hutton have a reasonable excuse for his actions?
- If the conviction stands, was the sentence manifestly excessive?
- [17]Depending on the conclusions reached on some of those issues, it may not be necessary to address them all in this judgment.
- [18]The principles that apply to this appeal are not contentious.
- [19]The appeal is a rehearing on the original evidence and any fresh evidence admitted by leave.[1]I should draw inferences from primary facts, including facts found and facts not disputed. I may exercise the powers of the appellate court only where the appellant can demonstrate the decision under appeal is the result of some legal, factual or discretionary error.[2]I must afford respect to the decision of the learned Magistrate and bear in mind any advantage he had in seeing and hearing the witnesses give evidence. However, that does not excuse me from my function in rehearing the matter. I must make my own assessment of the evidence and form my own conclusions about the appellant’s guilt, having due regard to the findings and conclusions of the learned Magistrate.[3]
Was it necessary to give a warning?
- [20]The learned Magistrate’s finding that QGC was not required to give a warning related to the opening paragraph of s 805(2). It provides that:
(2) If a person has obstructed a petroleum authority holder…and the holder decides to proceed with the carrying out of the activity the holder must warn the person that – (emphasis added)
- [21]His Honour found that QGC had decided not to proceed with carrying out that activity and, therefore, the circumstances in which a warning must be given had not arisen. In his decision he said the evidence of Mr Coker, a QGC contractor, was clear that the holder decided not to proceed at the point where they went and told Mr Raven not to enter the property until the protesters had left.[4]
- [22]Mr Hutton disputed that finding was open on the evidence.
- [23]With respect to the learned Magistrate, I do not agree the evidence established that QGC had decided not to proceed with the activity.
- [24]The advice to the contractor not to enter the property was given after Mr Naylor endeavoured to give a warning in the terms required by s 805(2). That is a clear indication that QGC had decided to proceed.
- [25]Mr Coker did not instruct the contractor to abandon the activity. There is no evidence any of the contractor’s employees or equipment left the site or that arrangements were made to conduct the activity on another day.
- [26]After the discussion between Mr Hutton and Mr Naylor and others, the protesters conferred. They all left the property except for Mr Hutton. He sat down on the track holding a Lock the Gate sign and was arrested and removed by police. [5]
- [27]At the hearing Mr Coker was asked What activity did your company do after that? He replied We then once the whole property was vacated by the non-associated people, they went and proceeded to clear and grade the northern section of the right – way.[6]
- [28]On appeal, it was common ground the works were delayed by approximately 2 hours. On that evidence, respectfully, his Honour erred in finding that QGC had decided not to proceed with the activity. The evidence established the works were deferred, until the protesters left or police intervened to clear the path to enable the contractors to enter.
Was the warning given sufficient?
- [29]Given that conclusion, it is necessary to consider the requirements of s 805(2). There are two aspects to the warning that must be given: that it is an offence to obstruct the holder of a petroleum authority unless the person has a reasonable excuse; and that the holder considers the person’s conduct is an obstruction.
- [30]It is immaterial whether the warning is written, oral or a combination of warnings of different kinds.[7]
- [31]At trial, a number of witnesses gave varying accounts of what warning was actually given to Mr Hutton. The learned Magistrate, correctly in my view, concluded Mr Naylor did not give a warning in strict compliance with s 805(2). On appeal, it was common ground that his finding was correct.
- [32]Leave was granted, at the request of both parties, for further evidence to be received on appeal. I was provided with a transcript of one recording of the conversation between Mr Hutton and Mr Naylor. I was also provided with 2 audio-visual recordings of the exchange between the two men and Mr Hutton’s arrest. The parties requested I view the audio-visual material in chambers before reaching my decision, which I did.
- [33]My conclusion on the evidence before me is that Mr Naylor warned Mr Hutton that he was obstructing the project but did not warn him that it was an offence to obstruct the holder of a petroleum authority unless the person had a reasonable excuse for so doing.
- [34]The requirement to warn a person does not place a burden on the prosecution to prove that the recipient actually understood the warning.[8]Nevertheless, I am left in no doubt about that.
- [35]Mr Hutton is an intelligent and well educated man. In his conversation with Mr Naylor he demonstrated that he understood Mr Naylor was trying to give him a warning that complied with s 805 of the Act. He even paraphrased the warning that he assumed Mr Naylor was trying to give him.
- [36]However, he sought to counter Mr Naylor’s attempt to warn him by asserting he had a reasonable excuse for being on the property. He told Mr Naylor that Mr Keating did not agree with the activity and that he believed QGC was conducting unreasonable interference with the property. I take that to be a reference to s 804 of the Act which provides that a person who carries out an authorised activity for a petroleum authority must do so in a way that does not unreasonably interfere with anyone else carrying out a lawful activity.
- [37]The issue I must determine is the effect of Mr Naylor’s statements to Mr Hutton. Counsel for Mr Hutton placed emphasis on the mandatory terms of s 805(2). It states the holder must warn the person obstructing in the terms set out in the Act. He argued this required strict compliance, regardless of what Mr Hutton may have assumed Mr Naylor was trying to say.
- [38]To be fair to Mr Naylor, he did attempt to comply with the Act. He tried to give Mr Hutton a letter which, it seemed to be accepted, contained a warning in proper form. He also tried to give an oral warning, but was diverted by Mr Hutton who told him he was not interested in listening to any warning.
- [39]However, it was not impracticable for Mr Naylor to give a warning of the nature required by s 805(2). The warning was in simple terms and required only two short statements.
- [40]At the end of their conversation, before they parted, Mr Naylor was able to give a partial warning to Mr Hutton. He told him that he was obstructing the project. When Mr Hutton said he was not going to listen, Mr Naylor said nothing further. There was no impediment to him finishing the warning that he needed to give, whether Mr Hutton said he would listen to it or not.
- [41]The warning did not have to be given in the precise terms of s 805(2); but the warning given by Mr Naylor, at best, met only the requirement of s 805(2)(b). Mr Naylor did not warn that it is an offence to obstruct the holder unless the person has a reasonable excuse. The warning he gave was insufficient to meet the requirements of s 805(2).[9]
What is the consequence of the failure to warn?
- [42]Having reached that view, I must consider what consequence the failure to warn has on the prosecution case against Mr Hutton.
- [43]The parties have proposed competing interpretations of s 805. Mr Hutton’s argument is that the offence is not complete until a warning is given that complies with s 805(2). As the warning was not compliant, he did not commit any offence, even though he was frank in his evidence at trial that sitting on the track did physically, impede QGC’s contractor, and that was his intention in sitting there.
- [44]The QPS argued a compliant warning is not a necessary precondition to a person committing the offence.
- [45]The resolution of the issue is not assisted by the awkward and ambiguous drafting of s 805. Read alone, s 805(1) states the offence of obstruction in simple terms: A person must not, without reasonable excuse, obstruct a petroleum authority holder…
- [46]This is a familiar formulation of the offence of obstruction and can be found in a number of Queensland Acts. Taken at face value, the offence would seem to be complete upon the physical act of obstruction, without reasonable excuse.
- [47]That begs the question, though, of what role is played by the warning required by s 805(2). It has the flavour of the warning required before a person could be found guilty of obstructing by failing to comply with a lawful direction.
- [48]That was the offence considered by the Court of Appeal in Cox v Robinson. At that time, it was an offence under s 120 of the Police Powers and Responsibilities Act 1997 (since repealed) to obstruct a police officer by failing to comply with a requirement or direction under that Act.
- [49]In Cox v Robinson the appellant was directed to attend a police station within a stated time and failed to do so. The section of that Act which authorised the direction also required the recipient to be warned that it was an offence not to comply with the direction.
- [50]The Court concluded the interaction of the two provisions, properly interpreted, meant that compliance with the warning requirement was an ingredient of the offence. In the absence of a proper warning, the recipient could not be considered to have obstructed police by failing to comply with the direction.[10]
- [51]That case turns on its own facts and the interpretation of two separate provisions and the effect of their interaction. That does not mean, though, that it does not provide some guidance as to how s 805 should be interpreted.
- [52]In this case, it is the interaction of two subsections in the one provision which, as a whole, deals with the offence of obstruction of a petroleum authority holder. The interpretation of a subsection or any part of it must be conducted in the context of the section read as a whole.
- [53]I do not accept s 805(2) plays no role in defining the circumstances in which the offence is committed. The purpose of s 805, as a whole, is to establish the offence of obstruction. S 805(1) states the offence and penalty. S 805(3) defines the key term obstruct. What purpose does s 805(2) serve if not to state when the offence might be committed? If the offence is complete upon the physical (as distinct from legal) act of obstruction, what object does the very specific warning requirement imposed by s 805(2) achieve?
- [54]I am not persuaded by the two possible purposes offered by the QPS.
- [55]The first was that, consistent with one of the objects of the Act, the warning would facilitate constructive consultation with people affected by activities authorised under the Act.[11]It certainly does provide an opportunity for the person warned to nominate a reasonable excuse if they thought they had one, as Mr Hutton did. It would seem futile, though, to provide an opportunity for constructive discussion after, not before, the offence was complete.
- [56]The second explanation is that it would fulfil the holder’s workplace health and safety obligations if it gave a warning prior to commencing or continuing their activities. There are a number of provisions in the Act dealing with safety. None were identified as interacting with or supporting this interpretation of s 805. Nor was any other legislation raised that might have assisted.
- [57]Section 805 is contained in the chapter of the Act which deals with general offences (Chapter 11) and in a part entitled Interference with authorised activities (Part 2). There is nothing in the position of s 805(2) in the Act or in its wording to support the argument that the warning requirement is a health and safety measure, which has no bearing on liability for the offence.
- [58]It would be preferable if sections that impose warning or information requirements are drafted more carefully, so as to state the consequences of non-compliance. The fact this has not been done does not relieve me of the obligation to interpret and apply the section in accordance with legal principles and in a way that would seem to best achieve the object of the provision.
- [59]Section 805, and s 804 which regulates the authority holder’s conduct, deal with competing private and, at least for the authority holder, commercial interests. They strive to achieve a balance between the interests of the owner of the land or other lawful occupant or user of it and the rights conferred on the holder of a petroleum authority. To that extent they might be distinguished from similar offences, such as public nuisance, which balance individual (freedom of action and expression) and community (safety and harmony) interests.
- [60]An additional feature of s 805 is the direct involvement of the authority holder rather than any public official, such as an inspector under the Act or a police officer charged with enforcement of the law. It is the authority holder itself, not a public official, who must form the view the conduct constitutes obstruction and who must give the necessary warning. The holder is not clothed with the authority of a public official. This may well explain the need for a warning to be given in explicit terms.
- [61]A person might be expected to respond to a police officer’s or inspector’s request to leave without further explanation because of the functions inherent in their positions. Not so with a private individual who holds an authority or represents a corporate entity which does. The contest of rights is more akin to a civil contest that might not, otherwise, attract criminal liability. That would explain the need to warn specifically that to obstruct an authority holder is an offence.
- [62]The offence created by the Act is a summary offence.[12]As it is not otherwise designated, it is a simple offence, one of the categories of criminal offences, which may be tried summarily in the Magistrates Court.[13]Although the maximum penalty is not large (500 penalty units), it is a criminal offence and must be interpreted according to the usual principles of interpretation that apply to such provisions.
- [63]In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous it may be resolved in favour of the person subject to it.[14]
- [64]In the absence of a compelling indication of another purpose for the warning required by s 805(2), I interpret s 805 to require proof that a warning was given in compliance with s 805(2) before a person may be found guilty of the offence created by s 805.
Conclusions
- [65]I have determined that the circumstances in which a warning is required did arise, because I am satisfied on the evidence beyond reasonable doubt that QGC had decided to proceed with the activity. I concur with the learned Magistrates finding that the warning given by Mr Naylor did not comply with the requirements of s 805(2). I consider the correct interpretation of s 805 is that compliance with s 805(2) is an element of the offence and it must be strictly complied with. Given those conclusions, the conviction cannot stand. The parties raised other issues: whether Mr Hutton had a reasonable excuse and whether the sentence was manifestly excessive. In light of the conclusions set out above, it is unnecessary to consider the remaining issues. The conviction cannot stand and must be set aside.
Orders
- The conviction entered in the Magistrates Courtat Dalby on 8 December 2011 is set aside.
- In its stead, I enter a verdict of acquittal.
Footnotes
[1] Justices Act 1886 s 222.
[2] Teelow v Commissioner of Police [2009] QCA 84 at p 3.
[3] Fox v Percy (2003) 197 ALR 201 at [25]; Rowe v Kemper [2008] QCA 175 AT [5]; Mbuzi v Torcetti [2008] QCA 231 at [17].
[4] Transcript of decision p 18 l9.
[5] Transcript: examination of Mr Coker p 1-40 L42 to p 1-41 L35.
[6] Transcript: examination of Mr Coker p 1-42 Ls 35-40.
[7] Cox v Robinson [2000] QCA 454 at [10].
[8] Cox v Robinson at [10].
[9] Rowe v Kemper at [81].
[10] Cox v Robinson at [9].
[11] Petroleum & Gas (Production & Safety) Act 2004 s 3(1)(j).
[12] Petroleum & Gas (Production & Safety) Act 2004 s 837.
[13] Criminal Code1899 s 3.
[14] R v Adams (1935) 53 CLR 563.