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Kriston v Commissioner of Police; Thompson v Commissioner of Police QDC 105
DISTRICT COURT OF QUEENSLAND
Kriston v Commissioner of Police; Thompson v Commissioner of Police  QDC 105
DANIEL BRONEK KRISTON
COMMISSIONER OF POLICE
MATTHEW JAMES THOMPSON
COMMISSIONER OF POLICE
Magistrates Court at Maroochydore
5th May 2017
21st April 2017
Both appeals are dismissed
APPEAL where police arrested one appellant for public nuisance; where the other appellant attempted to interfere with the arrest; whether the force used by police in each case was reasonably necessary to exercise the power of arrest without warrant; where her Honour reserved her decision and gave extensive and careful reasons for convicting each appellant.
Police Powers and Responsibilities Act 2000 ss 50, 365, 615, 790(1)(A)
Criminal Code 1899 ss 254, 260
Whitelaw v O'Sullivan  QCA 366
Mr C van der Weegen for both appellants
Mr G Cummings for the respondent
Suncoast Community Legal Service for the 1st appellant
Metro Q Law for the 2nd appellant
Office of the Director of Public Prosecutions for the respondent
- The appellants were tried in the Maroochydore Magistrates Court before her Honour Magistrate Hennessy on 11 April 2016 for offences arising out of an incident in the early hours of the morning outside the Old Sol Nightclub in Maroochydore on 11 June 2015. Each appellant was represented by counsel.
- On 9 September 2016, her Honour delivered a considered decision in which she convicted the appellant Kriston of offences of public nuisance and obstructing police officer McKie, and Thompson of obstructing police officer Barclay. Both have appealed against their convictions for obstructing police.
- The conviction for public nuisance involving Kriston and the penalties imposed by her Honour are not challenged.
- The focus of the challenge on appeal is on the element of the offence of obstructing police pursuant to s 790(1)(A) of the Police Powers and Responsibilities Act 2000 (“PPRA”) which requires proof that the relevant police officer was obstructed “in the performance of the officer’s duties.”
- The appeal is by way of rehearing on the material before her Honour. As I indicated at the hearing, I had by then read the transcript of the evidence led at the trial, her Honour’s decision and the various outlines and I had viewed Exhibit 1 which is CCTV footage from two angles of the incident outside the bar.
- Although the appellants faintly argue that her Honour’s findings of fact based on a careful and detailed analysis of the evidence, are inconsistent with Exhibit 1, in my opinion this argument cannot be sustained. The footage commences at a time when both appellants were with the three police officers just outside the bar on the public footpath, and includes interactions up to and including the arrest of both. It does not contain audio, and does not capture the appellant Kriston’s exit from the bar.
- The respondent has helpfully summarised the evidence of the prosecution witnesses in his outline, which accords with my reading of the transcript. Apart from the unsustainable argument about conflict with Exhibit 1, the appellants do not challenge the summary.
Summary of the prosecution case
- Police officers McKie, Hoffman and Barclay were conducting patrols near the Old Sol Bar at Maroochydore on Ocean Street in the early hours of the morning of the 11 June 2015. The appellant Kriston was being evicted by security and was swearing. Police intercepted him and obtained his identification and he continued to swear and call police “cunts.” As police were giving him a move on direction, Kriston continued to call police “cunts.” Police advised him that he was under arrest for public nuisance and moved him a short distance to position him over a railing where they could place handcuffs on him to effect the arrest. Kriston resisted arrest. He was eventually restrained.
- While this occurred Thompson, who was in close proximity, approached Officer Barclay who was observing and assisting the actions of Officers McKie and Hoffman as they attempted to arrest Kriston. Thompson was told by Barclay to move away. He refused and continued to walk closer to the police officer who in response pushed him back. He was verbally warned not to obstruct. Thompson then swiped the officer’s hand which was held out in an attempt to prevent him from approaching. A security officer intervened and restrained Thompson, and he was taken to the ground by the security officer and Officer Barclay and was restrained with handcuffs.
- From the outset it was not contested that the location where the offences occurred was in the vicinity of licenced premises. On behalf of Thompson it was admitted that his actions amounted to obstructing police. Identification was not in dispute. Neither appellant called or gave evidence.
- Senior Constable Duncan McKie gave evidence that he was in company with Officers Hoffman and Barclay outside the Old Sol Bar on Ocean Street at about 1.30am on 11 July 2015. He observed Kriston being escorted outside the bar by a security officer and heard him call the officer a “cunt” a number of times. He approached the male together with Hoffman. Kriston continued to swear. The police officer asked for his identification which he provided. This was given to Hoffman who conducted enquiries on his iPad.
- Kriston continued to swear at police and called them “a pack of cunts.” He was warned not to swear a number of times and his behaviour appeared to be escalating and he became more agitated as Hoffman began to give him a direction to move on. Senior Constable McKie told her Honour that because of Kriston’s continued swearing, Hoffman advised him that he was arrested for public nuisance. Hoffman grabbed Kriston’s right arm and he grabbed the left arm and moved him out of the way of the public towards a railing and attempted to handcuff him there.
- As Senior Constable McKie held Kriston against the railing with Hoffman, he attempted to retrieve his handcuffs from his vest. As he did this, the appellant Kriston resisted by attempting to pull away from the grip of the police officers on a number of occasions. He was advised a number of times to stop resisting which he failed to do. He was eventually handcuffed.
- Senior Constable McKie observed Barclay restraining the appellant Thompson on the ground with a security officer. Both appellants were transported in a police vehicle which arrived a short time thereafter and taken to the watch house.
- Exhibit 1 was tendered through Senior Constable McKie and it shows CCTV footage from two angles outside of the bar. During cross-examination he accepted that the appellant Kriston handed over his licence when requested and attempted to snatch it back at some stage. He accepted that he used his hand to push him away at one stage prior to the direction being given, as he perceived him to become agitated and was closing the distance between himself and Officer Hoffman. He stated that this was done “to create a safety barrier for officers.” He could not remember exactly whether Kriston was grabbed and transitioned before or after being advised that he was under arrest. He stated that “it would have been very close to being exactly the same time.” He accepted that force was used to hold the appellant Kriston over the railing which was approximately waist high of an average person. He clarified that the appellant Kriston began to walk away as the direction was being given to him and that was the stage at which point he was grabbed. He confirmed that the power he was acting under to arrest the first appellant was pursuant to s 365 of the PPRA for the purpose of preventing the continuation of offence. He accepted that there was no offer of, or any threat or violence by the appellant Kriston. However, he was concerned about the situation threatening the safety of other people.
- When questioned about why force was used to push him against the railing, he stated that such was done “quite quickly and swiftly which was done in an attempt to prevent any further escalation of the offence. I believe that he was escalating in his behaviour and I believe that once he was advised he was going to be under arrest, that he was going to escalate and resist police further. That’s why he was transitioned to the railing where we could control him and handcuff him ….”
- In response to a suggestion that his use of force was disproportionate to any threat to the safety of anyone he disagreed. He stated “I disagree that it was disproportionate. He was transitioned away from the entrance of the nightclub where there were members of the public coming and going, which was minimising the risks of those people coming and going from the nightclub, and he was handcuffed as far away as practicable at that time to minimise any further risk to anyone involved or anyone in the immediate vicinity.”
- It was suggested to him that it could have been “prudent and proper” in the first instance to tell the appellant Kriston “you are under arrest”, and wait for him to comply before using force. He disagreed that this would have worked in this instance. It was not suggested to him that the swearing by the first appellant did not in fact occur. Counsel for the first appellant did not challenge that he was resisting the arrest.
- Senior Constable Marc Barclay gave evidence. He described the events leading up to the appellant Kriston’s arrest consistent with that of Officer McKie, including the use of the words “pack of cunts.” At the point where Kriston was positioned over the railing, he assisted and grabbed one of his hands to try and get it behind his back as he was refusing to do so.
- A short time thereafter, in the context of assisting McKie and Hoffman, he felt the appellant Thompson touch him from behind. He placed his hand on his chest and extended it out to move him away. He told Thompson to move away. The appellant Thompson approached him. The police officer pushed him away again and used the words “move away.” The appellant Thompson again moved towards him. He was told “mate, you’re obstructing me from restraining your friend. Move away or you’re going to be arrested.” At this time, the police officer had his hand up in front of him. The appellant Thompson struck his arm to move it away from him. At that time, with the assistance of a security guard, he grabbed the appellant Thompson and restrained him on the ground where he was handcuffed.
- Under cross-examination he accepted that he did not observe Kriston offer any threats of violence. He stated that Hoffman did not complete the move on direction but was in the process of doing so. He said that the appellant Kriston continued to use swear words, even after being warned by McKie not to do so. In relation to the force used to transition the first appellant over the railing, he thought that it was Hoffman who was effecting this and described that it happened pretty quickly prior to him having to assist in the physical restraint.
- In relation to the force used against the appellant Thompson, he stated that “well, he’s just struck me in the arm. It’s just the initial reaction of myself and the security guard was to transition him to the ground.” It was not suggested to him that the swearing by the appellant Kriston did no in fact occur. There was no challenge to the fact that he was resisting arrest.
- Senior Constable Darren Hoffman gave consistent evidence with the other officers. He conducted checks on his iPad using the QLite system, which gives access to the QPRIME system.
- He was in the process of giving a move on direction when the appellant Kriston attempted to grab his licence out of his hand. This occurred again and the first appellant called police “cunts.” He was warned that he may be arrested. He continued to swear and was told he was under arrest prior to moving forward and grabbing his right arm. McKie also stepped forward and grabbed Kriston’s left arm as they together moved him forward and transitioned him to the railing. While placing his hands behind his back, the appellant resisted the attempts to handcuff him. He did this by moving his hands from behind his back and continually trying to straighten his arms and pull them forward. He heard McKie say “stop resisting” twice. The resistance lasted approximately 30 seconds before he was handcuffed by McKie.
- At this stage he could hear a disturbance behind him. He saw and heard Barclay say to the appellant Thompson “move away, move away.” He saw the appellant Thompson move forward towards Barclay who in response pushed him in the chest with an open hand. He clarified that at this stage he was looking over his back. He recalled that a security guard was assisting Barclay with the arrest of the second defendant.
- During cross-examination he accepted that at some point he gave the licence back to the appellant Kriston but could not recall when. He said that he pushed Kriston towards the rail due to the escalation in his behaviour, which was the purpose for arresting him in the context of the words he was using. He accepted he did not feel threatened but maintained that he was being verbally aggressive. He denied being angry. He did not allow any time for the first appellant to comply with the arrest before he was grabbed. He accepted that in that time there was no offer of violence or threat.
- He reiterated in response to other proposed alternatives to pushing him to the railing, that such was not disproportionate to any perceived offer or threat of violence, as in his view it was hard to control someone by just grabbing their arm. He maintained that it was reasonable force, particularly in the context of dealing with an offender who was not listening to them and was swearing and not complying with their requests. He disagreed with the proposition that such force in fact escalated the matter.
- Security officer John Jackson gave evidence. He was a security officer employed by Absolute Security on the night of the offences at the Old Sol Bar on Ocean Street. On this night he was checking identification of patrons at the front door of the venue. He had worked as a security guard for 15 years.
- He observed the initial interactions between Kriston and police. Kriston was irate, screaming, shouting and carrying on. He could not recall distinct words. He observed Barclay’s interaction with the second appellant Thompson and stated that he restrained him and took him to the ground.
- Under cross-examination he accepted he was not asked by police to intervene in restraining anyone. He clarified that when he restrained Thompson he placed him in a headlock and put him to the floor. He was joined a few seconds later by police officer Barclay.
- Her Honour found the accounts of witnesses in relation to the words used and the actions of both appellants were as alleged by police. Her Honour found that the words used by Kriston in the context of how they occurred amounted to public nuisance after she’s considered a number of authorities. He was found guilty of that offence. There is no challenge to that finding.
- The magistrate found that Kriston was not heeding the police, was warned to stop using obscene language and continued to do so. He was not listening to and was interrupting the attempted move on direction and that in the circumstances an arrest was necessary to prevent the continuation of the public nuisance offence.
- Her Honour found that in relation to the use of force, s 615 of the PPRA required police to use only reasonably necessary force to exercise the power and found such power was for the purpose of effecting such an arrest. Specifically, she found that actions by police in moving him to the railing in the course of overcoming the resistance to the application of handcuffs was reasonably necessary to arrest him in the circumstances. Her Honour formed the view that police were not required to give the first appellant the opportunity to comply with their statement of arrest. Given his non-compliance at that point, she found that any subsequent compliance was extremely unlikely. She concluded that the arrest was lawful.
- In relation to the appellant Kriston, her Honour found that his actions which were “clear and uncontested” clearly amounted to an obstruction of police and that such hinder the actions of police and made their task in arresting him more difficult. In relation to the appellant Thompson, she found that the evidence of his actions was uncontested and that his actions clearly obstructed police.
- In light of the limited focus of the arguments of the appellants on appeal, the critical findings in her Honour’s comprehensive decision are at pages 14 to 15 of the Transcript from line 31-38:
“It’s clear, on the evidence of the police officers, and I accept that the defendant Kriston was not heeding the police warnings to stop using obscene language and continued to do so – some of the evidence refers to him doing so by yelling and speaking very loudly – that he was intoxicated, that he was not listening to and was interrupting the attempted move on direction, and that, in the circumstances, an arrest was necessary to prevent the continuation of the public nuisance offence.
In relation to the use of force, s 615 of the PPRA requires police to use only reasonably necessary force to exercise the power, in this case, the power of arrest. The power used by the police against the defendant Kriston in the course of the arrest, on the evidence, wad restraining his arms behind his back and attempting to handcuff him, moving him to the railing on the footpath as he resisted by attempting to pull his arms away from the police and leaning over the railing to affect the fitting of handcuffs. The police gave evidence that the arrest was effected to prevent the defendant’s behaviour frim continuing to escalate and to prevent the continuation of the public nuisance offence. They accepted that he was not offering any physical violence or threats but was, rather, non-complaint with their warnings to desist with the use of the obscene language, and the attempted move on directions.
I find, on the evidence, that the use of force by police described above towards the defendant Kriston was reasonably necessary to arrest him in the circumstances. I do not consider that the police were required to give the defendant the opportunity to comply with their statement of arrest. Given his non-compliance to that point, any subsequent compliance was extremely unlikely. I am consequently satisfied that the arrest of Mr Kriston for public nuisance was lawful.
In relation to the obstruct charge against each defendant, the evidence is clear and uncontested that Mr Kriston did struggle with the police to the extent described above in attempting to avoid handcuffing, and those actions clearly constitute obstructing police within the meaning of the section in that it hindered the actions of the police and made their task in arresting him more difficult, and I refer to the formal admission that obstruction had occurred as well.
The evidence of police in relation to Mr Thompson was also uncontested: that he approached closely behind Officer Barclay, was told to move back and was moved backwards by the officer and warned that he was obstructing the arrest of his mate, which was happening in very close proximity, and then moved in again and took hold of the officer, having his arm batted away, and was then arrested. I find that the defendant Thompson’s actions clearly obstructed police.”
The appellant’s contention
- In my opinion, the appellant’s submissions concerning the relevant law are misconceived. The nub of their argument is expressed thus in para 12 of the outline:
“12. It is not disputed that both appellants did obstruct the police. The issue in dispute is whether the arresting officer were ‘in the performance of the officer’s duties’ (sic) under s 790. It is submitted that as it was uncontested that the first appellant was not using or threatening any violence towards the police or any member of the public, force used by the police, in quickly grabbing and pulling the first appellant forcibly towards a railing to handcuff him, was not reasonably necessary under s 615 of the PPRA as:
a) given there was no urgency for safety reasons, and it was practicable to do so in the circumstances, he was given no time or opportunity to comply or submit to being placed under arrest prior to being handcuffed by Senior Constable Hoffman for public nuisance after the use of non-threatening but offensive language by him towards the police; or
b) the force used by Senior Constables Hoffman and McKie was disproportionate to any possible ‘danger to be apprehended’ under s 260 of the Criminal Code 1899 in preventing any breach of the peace under s 50 of the PPRA as there was no danger to be apprehended; or
c) the forced (sic) used by Hoffman and McKie was not used to overcome any force used in resisting arrest under s 254 of the Criminal Code when he was arrested as there was no force used by the him (sic) prior to being handcuffed by the police.”
- It is misconceived for a number of reasons. Section 615 of the PPRA relevantly provides:
“615 Power to use force against individuals
- (1)It is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual… to use reasonably necessary force to exercise the power.”
- As her Honour noted, the power being exercised was the power to arrest without warrant an adult the police officer reasonably suspects has committed or is committing an offence, if it is reasonably necessary… “to prevent the continuation or repetition of an offence or the commission of another offence”: s 365(1)(a) of the PPRA.
- There being no sustainable challenge to the findings of fact, particularly those in relation to both appellants referred to in the quotation from her Honour’s reasons above, the task for her Honour was to decide if the force used by the police officers to arrest the appellants was “reasonably necessary.”
- This was not a case like Whitelaw v O'Sullivan  QCA 366, upon which the appellants significantly rely, where the police officer was charged with assaulting a person in the course of an incident, and the power said to be exercised by him was under s 50 of the PPRA dealing with preventing a breach of the peace. At the hearing, I asked Mr van der Weegen where the notion of proportionate force had come from, as both he and Ms Taylor of counsel for Thompson and the police prosecutor below raised this notion with her Honour. I suspect it comes from the words of s 260 of the Criminal Code which clearly has no application here. It is a complete red herring to invoke ss 254 and 260 of the Code and s 50 of the PPRA as these sections do not apply to the circumstances here.
- Despite the attempts of the parties below to encourage her Honour to go beyond the natural and ordinary meaning of the words in s 615 and s 365(1)(a) of the PPRA, her Honour clearly understood that the issue joined was whether or not the police used reasonably necessary force to exercise the power contained in s 365. She dealt with the surrounding facts and circumstances in relation to each arrest, and found that the force used (as described in the passage quoted from her decision above) was reasonably necessary in each case to arrest each appellant.
- Mr van der Weegen introduced the concept of the arrest of Thompson by Barclay being “tainted” by what he has unsuccessfully argued was the unlawful arrest of Kriston by McKie. The proper task for her Honour, which she undertook in a careful, comprehensive and legally correct manner, was to assess the factual circumstances of each case in deciding whether or not each police officer was acting in the performance of his duty. As regarding the points made by the appellants in a) above, the test is not whether other force or no force would have facilitated the arrest, it is whether what was done by the police was reasonably necessary force to effect the arrest. As to the issue of proportionality, that may arise as an aspect of reasonableness but it is not part of the test set out in the law.
- There is no legal, factual or discretionary error disclosed in her Honour’s reasons and both appeals are dismissed.
- Published Case Name:
Daniel Bronek Kriston v Commissioner of Police; Matthew James Thompson v Commissioner of Police
- Shortened Case Name:
Kriston v Commissioner of Police; Thompson v Commissioner of Police
 QDC 105
05 May 2017