Lin v Commissioner of Police[2015] QDC 208

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was convicted after a trial in the Holland Park Magistrates Court on 26 September 2014 of one charge of obstructing a police officer^[1] and one charge of contravene a direction or requirement of a police officer.^[2] He appeals those convictions pursuant to s 222 of the Justices Act 1886. 

2. [2]
   His appeal is based on the following grounds:

The learned magistrate erred in fact and law by being satisfied that the prosecution had proven each element of the offence beyond reasonable doubt.  These errors included:

1. (i)
   the learned magistrate erred by concluding that Senior Constable Greenwood lawfully required the appellant to “move on”;

2. (ii)
   the learned magistrate erred by concluding that Senior Constable Greenwood lawfully directed the appellant to produce his driver’s licence;

3. (iii)
   the learned magistrate erred by concluding that the appellant did not produce his driver’s licence as directed;

4. (iv)
   the learned magistrate erred by concluding that Senior Constable Greenwood was acting in the performance of his duties when he was alleged to have been obstructed by the appellant; and

5. (v)
   the learned magistrate erred by concluding that Senior Constable Greenwood was acting lawfully and reasonably when he struck the appellant to the face, with such a conclusion being irrelevant to the trial and in excess of jurisdiction.

Evidence produced at the Magistrates Court

3. [3]
   The only witness in the trial was Senior Constable Stuart Greenwood.

4. [4]
   His evidence was that he had been conducting unrelated duties prior to and near the scene of the incident. He recorded the entirety of the subject incident by way of a chest-mounted video camera. That camera remained running throughout his interactions with the appellant.

5. [5]
   Officer Greenwood said that whilst conducting those unrelated duties, a number of persons approached him regarding the issue of people parking in a no parking area outside the Sunnybank Hills State School.

6. [6]
   Officer Greenwood subsequently rode his police motorcycle to that area and pulled up alongside a stopped vehicle which had the appellant in the driver’s seat. The appellant was directed by Officer Greenwood to move on from that no parking area. He failed to drive off and was again told by the officer to move on. The appellant argued with the officer but drove his car forward a short distance before stopping still within the no parking zone. The appellant’s car then started to roll backwards. The officer yelled out to the appellant to put his foot on the brake. The appellant did not have proper control of the vehicle at that time and in fact was filming the officer on his mobile phone when the car rolled backwards.

7. [7]
   The officer then gave a requirement to the appellant, asking for his driver’s licence to be produced. The appellant pulled out his driver’s licence and held it up inside his car but did not hand it to the officer. Officer Greenwood attempted to take possession of the license on two occasions but the appellant pulled his hand away each time. These are the actions which constitute the offence of contravene a requirement or direction. The obstruct police charge arose as a consequence of the appellant’s behaviour when he was told that he was under arrest for contravening a direction or requirement. The officer tried to handcuff the appellant, who was still seated in the driver’s seat. The appellant struggled with the officer, and on two occasions the appellant attempted to start his car whilst the officer was leaning in through the driver’s door. The officer punched the appellant in the course of this struggle. Ultimately, the appellant was removed from his car, handcuffed and later given a Notice to Appear.

8. [8]
   The video recording of this incident was tendered as an exhibit.^[3]

9. [9]
   The appellant did not give evidence.

Applicable law

10. [10]
    An appeal pursuant to s 222 of the Justices Act 1886 is by way of rehearing on the evidence given before the magistrate.^[4]The court is required to conduct a real review of the trial and the learned magistrate’s reasons.  In doing so, the court should give due deference and attach a good deal of weight to the views of the magistrate, but it remains for the appellate court to draw its own conclusions on the evidence.^[5]

11. [11]
    In Tierney v Commissioner of Police [2011] QCA 327 it was noted:

“In Fox v Percy the High Court made it plain that where a finding of fact depends on a view taken of conflicting testimony, it is the duty of the appellate court to conduct a ‘real review’ of the evidence; it is obliged to accord respect to the decision of the trial court and to bear in mind any advantage the trial court had in seeing and hearing the witnesses give their evidence; it is to weigh conflicting evidence and draw its own inferences and conclusions. If, after doing this, the appellate court concludes that an error has been shown, then it is entitled and obliged to exercise its powers on appeal.”^[6]

12. [12]
    The powers of an appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal, is the result of some legal, factual or discretionary error.^[7]

13. [13]
    In Mbuzi v Torcetti,^[8] the Court said:

“On such an appeal the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175 at [5].”

14. [14]
    Given that the incident the subject of this appeal was videorecorded and that the recording was tendered as an exhibit, this is not a case where the magistrate has an advantage over the appellate court in terms of being able to assess the evidence.

Grounds of appeal

15. [15]
    I will return to this issues raised at ground (i) after consideration of the other grounds of appeal.

Grounds (ii) and (iii) – the learned magistrate erred by concluding that Senior Constable Greenwood lawfully directed the appellant to produce his driver’s licence, and by concluding that the appellant did not produce his driver’s licence as directed.

16. [16]
    Section 58(1)(c) of the Police Powers and Responsibilities Act 2000 (“PPRA”) empowers a police officer to require a person to produce the person’s driver’s licence for inspection if the officer is making inquiries or investigations for establishing whether or not a person has committed an offence against the Road Use Management Act. 

17. [17]
    In this matter, Officer Greenwood said that he required the appellant to produce his licence after witnessing the appellant’s car roll backwards for approximately one and a-half to two metres. He said that he wished to establish that the appellant was appropriately licenced.^[9]That was not an unreasonable request in the circumstances. It follows that Officer Greenwood’s requirement to the appellant to produce his licence for inspection was authorised by law and he was acting in the performance of his duties at the time. 

18. [18]
    The recording shows that the appellant pulled out his driver’s licence but refused to hand it over to Officer Greenwood despite numerous requests.

19. [19]
    The appellant has submitted that whilst s 58(2) of the PPRA requires a person to produce a driver’s licence upon request, it does not require the person to physically hand it to the police officer.  He submits therefore that he did not contravene the requirement to produce his licence.  Unfortunately for the appellant, s 58(2) provides that a police officer may require the person to produce the driver’s licence for inspection (my underlining), and that is precisely what Officer Greenwood did. The appellant however held the licence in such a manner that made it impossible for Officer Greenwood to inspect the licence. Accordingly, the appellant contravened the requirement. 

20. [20]
    This was an issue correctly identified by the learned magistrate in his reasons. There has therefore been no error of law or fact, and these grounds of appeal must fail.

Ground (iv) – the learned magistrate erred by concluding that Senior Constable Greenwood was acting in the performance of his duties when he was alleged to have been obstructed by the appellant.

21. [21]
    Section 790 of the PPRA states that a person must not assault or obstruct a police officer in the performance of the officer's duties.

22. [22]
    The respondent has submitted that the officer was acting in the execution of his duties when he attempted to arrest the appellant on the charge of contravene a requirement.

23. [23]
    Section 365 of the PPRA provides that it is lawful for a police officer to arrest, without warrant, an adult the police officer reasonably suspects has committed or is committing an offence if the offence is an offence against s. 791 of the PPRA (i.e. contravene a requirement or direction). There can be no doubt on the evidence in this matter that the officer held such a suspicion and that it was reasonably based in the circumstances.

24. [24]
    It follows that the officer was acting in the execution of his duties when he attempted to arrest the appellant. The appellant clearly obstructed the officer in his execution of that duty by struggling with him and attempting to turn on the car’s ignition twice. Accordingly, this ground of appeal must also fail.

Ground (v) –  the learned magistrate erred by concluding that Senior Constable Greenwood was acting lawfully and reasonably when he struck the appellant to the face, with such a conclusion being irrelevant to the trial and in excess of jurisdiction.

25. [25]
    During the aforementioned struggle the officer struck the appellant once to the head. The issue as to whether or not the officer was acting in the performance of his duties when he did so is not relevant to the determination of this appeal. Accordingly, I need not comment upon this ground further.

Ground (i) – the learned magistrate erred by concluding that Senior Constable Greenwood lawfully required the appellant to “move on”.

26. [26]
    The appellant’s principal argument on appeal is that as Officer Greenwood directed him to move on as soon as he (Officer Greenwood) arrived at the scene, he had no basis for concluding that the appellant had breached s 168 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (“Road Rules”).  That section relevantly reads:

“168 No parking signs

1. (1)
   The driver of a vehicle must not stop on a length of road or in an area to which a no parking sign applies, unless the driver—

1. (a)
   is dropping off, or picking up, passengers or goods; and

2. (b)
   does not leave the vehicle unattended; and

3. (c)
   completes the dropping off, or picking up, of the passengers or goods, and drives on, as soon as possible and, in any case, within the required time after stopping.

Maximum penalty—20 penalty units.

2. (2)
   For this section, a driver leaves a vehicle unattended if the driver leaves the vehicle so the driver is over 3m from the closest point of the vehicle.

3. (3)
   In this section—

required time means—

1. (a)
   if information on or with the sign indicates a time—the indicated time; or

2. (b)
   if there is no indicated time—2 minutes; or

3. (c)
   if there is no indicated time, or the indicated time is less than 5 minutes, and section 206 applies to the driver—5 minutes.”

27. [27]
    The appellant submits that there is no evidence that his vehicle had been at that location for longer than two minutes and there was therefore no evidence that he had breached s 168 of the Road Rules. 

28. [28]
    It follows, so it is argued, that the officer’s directions to “move on” were not authorised by law and he was not acting in the execution of his duty.

29. [29]
    It may well be that the appellant is correct that the officer had no evidentiary basis for concluding that a parking offence had been or was being committed. I also agree that the officer had no lawful authorisation to direct the appellant to “move on”. That appears to be the case whether or not the officer had any information before him that a parking offence had been or was being committed although the respondent has submitted however that ss 46, 47 and 48 of the PPRA provide lawful authority for such a direction.  Those sections state:

“46 When power applies to behaviour

1. (1)
   A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s behaviour is or has been—

1. (a)
   causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or

2. (b)
   interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; ord

3. (c)
   disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place; or

4. (d)
   disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.

2. (2)
   If the regulated place is a public place, other than a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s behaviour has or had the effect mentioned in subsection (1)(a), (b), (c) or (d) in the part of the public place at or near where the person then is.

2. (2A)
   If the regulated place is a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s behaviour has or had the effect mentioned in subsection (1)(a), (b), (c) or (d) in any public place located in the safe night precinct. (3) Subsection (1)(b) applies to premises used for trade or business only if the occupier of the premises complains about the person’s behaviour.

4. (4)
   However, subsections (1)(b) and (3) do not limit subsection (1)(a), (c) and (d).

5. (5)
   This part also applies to a person in a regulated place if a police officer reasonably suspects that, because of the person’s behaviour, the person is soliciting for prostitution.

6. (6)
   For this part, the person’s behaviour is a relevant act.

47 When power applies to a person’s presence

1. (1)
   A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s presence is or hasbeen—

1. (a)
   causing anxiety to a person entering, at, or leaving the place, reasonably arising in all the circumstances; or

2. (b)
   interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or

3. (c)
   disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.

2. (2)
   If the regulated place is a public place, other than a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s presence has or had the effect mentioned in subsection (1)(a), (b) or (c) in the part of the public place at or near where the person then is.

2. (2A)
   If the regulated place is a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the place only if the person’s presence has or had the effect mentioned in subsection (1)(a), (b) or (c) in any public place located in the safe night precinct.

3. (3)
   Subsection (1)(b) applies to premises used for trade or business only if the occupier of the premises complains about the person’s presence.

4. (4)
   However, subsections (1)(b) and (3) do not limit subsection (1)(a) and (c).

5. (5)
   For this part, the person’s presence is a relevant act.

48 Direction may be given to person

1. (1)
   A police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances.

2. (2)
   However, a police officer must not give a direction under subsection (1) that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of—

1. (a)
   public safety; or

2. (b)
   public order; or

3. (c)
   the protection of the rights and freedoms of other persons.

3. (3)
   Without limiting subsection (1), a direction may require a person to do 1 of the following—

1. (a)
   leave the regulated place and not return or be within the regulated place within a stated reasonable time of not more than 24 hours;

2. (b)
   leave a stated part of the regulated place and not return or be within the stated part of the regulated place within a stated reasonable time of not more than 24 hours;

3. (c)
   move from a particular location at or near the regulated place for a stated reasonable distance, in a stated direction, and not return or be within the stated distance from the place within a stated reasonable time of not more than 24 hours.

4. (4)
   The police officer must tell the person or group of persons the reasons for giving the direction.”

30. [30]
    There is no evidence however that Officer Greenwood suspected (reasonably or otherwise) that the appellant’s behaviour in stopping his car at the subject location caused anxiety to a person, or interfered with a trade or business in any way, or was disorderly, indecent, offensive or threatening to someone entering or leaving the place, or constituted a disruption to the peaceable and orderly conduct of any event, entertainment or gathering. It follows that s 48 has no application and did not provide Officer Greenwood with any lawful authorisation to direct the appellant to “move on”. 

31. [31]
    As I have already indicated, however, once Officer Greenwood decided to investigate whether the defendant was appropriately licenced after witnessing the defendant apparently lose control of the vehicle when it rolled backwards, he was from that point acting in the lawful execution of his duty.

32. [32]
    It follows that this ground of appeal must also fail.

Order

The appeal against conviction on each charge is dismissed.

33. [33]
    I will hear the parties as to costs.