Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2017
  4. Harvey v Queensland Police Service - [2017] QDC 310

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Determined (QCA)

Harvey v Queensland Police Service[2017] QDC 310

Harvey v Queensland Police Service[2017] QDC 310

DISTRICT COURT OF QUEENSLAND

CITATION:

Harvey v Queensland Police Service [2017] QDC 310

PARTIES:

BARRY HARVEY

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

402/17; 683/17; 684/17

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

22 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2017

JUDGE:

Smith DCJA

ORDER:

  1. The appeal against each conviction is dismissed.
  2. The appeal against each sentence is dismissed.
  3. The orders made in the Magistrates Court in each of these matters are confirmed. 

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – Whether magistrate should have excluded certificate of analysis – whether identity of driver established – whether appellant under the influence – whether public nuisance committed by appellant – whether the appellant assaulted the complainant – whether any defence applied

CRIMINAL LAW – APPEAL AGAINST SENTENCE – Whether sentences manifestly excessive

Criminal Code 1899 (Q) ss 24, 25, 245, 271

Hospital and Health Boards Act 2011 (Q) s 182

Justices Act 1886 (Q) ss 222, 223 

Police Powers and Responsibilities Act 2000 (Q) s 365

Transport Operations (Road Use Management) Act 1995 (Q) ss 79, 79A, 80

Traffic Regulations 1962 (Q) s 183

Ajayi v R (2012) 263 FLR 465

Andrews v Rockley [2008] QDC 104

Brady v Schatzel [1911] St R Qd 206

Bunning v Cross (1978) 141 CLR 54

Coleman v Power (2004) 220 CLR 1

EM v R (2007) 232 CLR 67

Forrest v Commissioner of Police [2017] QCA 132

Garrow v Platsis; ex parte Platsis [1989] 1 Qd R 154

Grayson v Crawley; ex parte Crawley [1965] Qd R 315 

Melser v Police [1967] NZLR 437

O'Connor v Shaw [1958] Qd R 154

Police v Christie [1962] NZLR 1109

R v Everingham (1949) 66 WN (NSW) 122

R v GV [1996] QCA 394

R v Rogers (1996) 86 A Crim R 542

Swaffield v R  (1998) 192 CLR 159

Teelow v Commissioner of Police [2009] 2 Qd R 489

Warnakulasuriya v R (2012) 261 FLR 260

COUNSEL:

Self-represented appellant

Mr J Dudley for the respondent

SOLICITORS:

Self-represented appellant

Office of the Director of Public Prosecutions for the respondent

 Introduction

  1. [1]
    The appellant appeals the convictions and penalties imposed in the Magistrates Court at Brisbane on 3 February 2017.
  1. [2]
    The appeal has been brought pursuant to s 222 of the Justices Act 1886 (Q).  Section 223 of the Justices Act provides that the appeal is to be by way of rehearing. 
  1. [3]
    In Forrest v Commissioner of Police[1]it was said that an appeal by way of rehearing requires the appellate court to decide the case for itself.  It must conduct a real review of the evidence and make up its own mind about the case. 
  1. [4]
    In Teelow v Commissioner of Police[2]it was held that, ordinarily, to succeed in such an appeal is it necessary for the appellant to demonstrate that having regard to all of the evidence before the appellate court, the order is the result of some legal, factual or discretionary error. 

Charges

  1. [5]
    The appellant was convicted of each of the following three charges.
  1. [6]
    Charge 1:

“Transport Operations Road Use Management Act 1995 (“TORUM”) s 79(1)(e), did drive UIL.

That on the second day of January 2016 at Deagon in the Sandgate division of the Brisbane Magistrates Court district in the State of Queensland [the appellant] whilst he was under the influence of liquor or a drug did drive a motor vehicle, namely a motor car, on a road, namely Biarra Street, Deagon and it is averred that the said motor car was a motor vehicle as defined in Schedule 4 of the TORUM Act and has averred that the said Biarra Street is a road as defined in Schedule 4 of the TORUM Act.” 

  1. [7]
    Charge 2:

“Hospital and Health Boards Act 2011 s 182, conduct causing a public nuisance.

That on the second day of January 2016 at Chermside in the central division of the Brisbane Magistrates Court district in the State of Queensland [the appellant] was disorderly on Health Services land, namely Prince Charles Hospital.” 

  1. [8]
    Charge 3:

“Criminal Code Act 1899 s 340 serious assault police officer by biting and spitting.

That on the second day of January 2016 at Chermside in the State of Queensland, one Barry Bernard Harvey assaulted Peter Andrew Griffiths, a police officer, whilst Peter Andrew Griffiths was acting in the execution of his duty and it is further alleged that in the assault by the said appellant he attempted to spit at the said police officer.” 

  1. [9]
    Convictions were recorded on each count. On the UIL charge he was fined $1500 and disqualified from holding or obtaining a driver’s license for 9 months; on the public nuisance offence he was fined $1000; and on the serious assault charge he was fined $1800.

Grounds of appeal

  1. [10]
    With respect to the conviction of the drink driving charge, the appellant alleges that:
  1. (a)
    The magistrate did not give him the benefit of conflicting and unreliable evidence about whether or not he was a passenger or driver of the vehicle;
  1. (b)
    The magistrate failed to exclude the certificate of analysis;
  1. (c)
    The magistrate was biased;
  1. (d)
    The magistrate failed to give him the advantage of his evidence;
  1. (e)
    The sentence is manifestly excessive. 
  1. [11]
    With respect to the conviction for public nuisance, the appellant alleges:
  1. (a)
    The magistrate did not give him the benefit of conflicting and unreliable evidence about whether he was under arrest or free to leave;
  1. (b)
    The magistrate did not give him the benefit of the defence of mistake;
  1. (c)
    His conduct was not disturbing or disorderly;
  1. (d)
    The magistrate should not have excluded the defence of emergency;
  1. (e)
    The magistrate demonstrated bias;
  1. (f)
    The magistrate failed to accept the appellant’s evidence;
  1. (g)
    The sentence is manifestly excessive. 
  1. [12]
    With respect to the serious assault conviction, the appellant alleges:
  1. (a)
    The appellant was not lawfully arrested;
  1. (b)
    The magistrate did not give him the benefit of self-defence;
  1. (c)
    The magistrate failed to consider the defence of mistake;
  1. (d)
    There was no assault, there was no spittle involved;
  1. (e)
    Bias was demonstrated;
  1. (f)
    The magistrate should have accepted his evidence;
  1. (g)
    The sentence is excessive. 
  1. [13]
    It was agreed by the parties below and on the appeal that the charges related to one series of events and should be heard together.

Evidence

  1. [14]
    Jason Anderson gave evidence that he resides at 18 Biarra Street, Deagon. On 2 January 2016 he was in bed and heard a very loud bang and he walked outside and saw a car lying on the passenger side, on his side of the street, with about seven or eight people standing around, trying to get the driver of the vehicle out of the car.[3]The time was about 10.30pm in the evening and the group of people were trying to get somebody out of the vehicle.[4]They were telling the person to try undo their seatbelt but they were having some difficulty.  Someone was able to get the seatbelt undone but he couldn’t recall anyone actually get out of the vehicle.[5]He did not see the person in the car because it was dark and did not see him physically get out of the vehicle. 
  1. [15]
    In cross-examination the witness conceded he had made a statement about two weeks prior.[6]He conceded he was not sure of the exact time but around 10.00 or 10.30pm.[7]He had gone to bed after 9.30pm, he was unable to say what sort of car it was and he couldn’t say whether the driver was in the court room.[8]
  1. [16]
    Eamon O'Donoghue who lives at 11 Biarra Street, Deagon gave evidence that he recalled a car going down the street, heard a bang, went outside and the car was on its side on the street so he went to give some assistance to the person who was in the car.[9]This was on about 1 January 2016, close to 10.00pm.[10]He heard the crash and bang so went to his patio door onto the balcony, down the steps through his garden, down to the car and saw the car on its side.  They spent about 10 minutes trying to get the person out of the car.[11]The vehicle was on its passenger side on the right.  The driver was around 60 years of age, heavyset, sitting on the door that was on the ground.[12]He went back to his house to get a ladder to put against the car to reach in and help the person out.[13]Emergency services were then called.  The occupant of the car was concerned whether he had hit anybody.[14]The man asked if the police were coming and he was told they were and he said “Oh shit” or “I’m fucked”.[15]After the witness took his ladder back, the man was sitting on the outside of the car.  The fire brigade, ambulance and police arrived.[16]The man was taken into the ambulance.  His house was about 50 metres from the car.[17]
  1. [17]
    In cross-examination the witness agreed the man was sitting on the passenger’s door and there was no one in the driver’s seat.[18]He said the person sitting in the vehicle was the driver because it was only a short time after the bang for him to get to the vehicle and denied that anyone else was hiding in the vehicle.[19]He assumed the person in the car was the person driving the vehicle.[20]He wasn’t 100 percent sure which day it was.[21]It was approximately 10.00pm.[22]He would not know if the person it the car was in the court room.[23]The person was very confused.[24]He said that the person was about 60 years of age.[25]He agreed that the defendant was about 50.[26]
  1. [18]
    Mr Bevan Jay, an advanced care paramedic for Queensland Ambulance attended the scene on 2 January 2016. When they arrived they saw a vehicle on its side with the appellant sitting near the car.[27]He didn’t see anything seriously wrong with the appellant but convinced him to go to the hospital and they had a police officer escort them because the appellant’s behaviour was unusual and aggressive and on the way to the hospital he became further agitated with the police officer and was yelling a lot of abuse.[28]Once they got to the triage area, the appellant went off again.[29]The appellant was getting more vocal and abusive towards multiple people around him.  They were in the triage holding area and at that point he was placed under arrest by the police officer and restrained by the help of four security guards.[30]The appellant also admitted to the witness that he had been drinking alcohol that night.[31]He couldn’t recall exactly what time he had the first interaction with the appellant.[32]The appellant wasn’t aggressive straight away, it was only after they started talking that he became very erratic and abusive and was slurring his words.[33]He smelt of alcohol quite significantly.[34]The appellant, aside from admitting to drinking alcohol, admitted he was driving and hit the car to the side which made his car roll on it’s side.  He admitted to driving, clipping a car on the side of the road which caused his car to roll and his car went onto its side.[35]It took about 10-15 minutes to get to the hospital.  He was agitated in the hospital, yelling loudly, using abusive language to anybody who spoke to him and making threats.[36]After this, the police officer advised the appellant he was under arrest which was followed by more yelling and then four security guards opted to restraint him.  She advised him he would be under arrest if he continued with his behaviour.[37]The appellant did not consume any liquor in front of him.[38]
  1. [19]
    In cross-examination the witness said that he thought he had attended the incident sometime after midnight.[39]He did not recall the exact words said at the hospital.[40]He could not recall the exact words used by the appellant when he talked about the accident.[41]Both Mr Jay and the police officer asked the appellant about the accident.[42]It was quite possible the appellant was agitated about his son.[43]He was triaged by the hospital staff without any dramas.[44]The witness said he was quite agitated towards himself and other hospital staff.[45]He did not know if the appellant had any drinks whilst he waited for the ambulance.[46]He agreed that he volunteered to go to the hospital in the ambulance.[47]
  1. [20]
    Plain clothes Constable Lisa Thomas gave evidence that on 2 January 2016 (a Saturday) she was working a 10.00pm to 6.00am shift and received information about the traffic crash. She arrived but the ambulance was already there as well as several other police officers.[48]The vehicle was on its side in the middle of the street.  One of the parked cars had been skimmed.  The appellant was in the back of the ambulance.[49]The officer then entered the ambulance and observed the appellant.  He first stated he didn’t wish to go to the hospital and it was decided he would be arrested for UIL and the officer was going to ride in the back of the ambulance for an assessment of blood.[50]The appellant showed signs of intoxication.[51]The appellant then objected to the police officer giving evidence of conversations because he said he was not warned.  The witness gave further evidence that she had determined to charge him with an offence prior to questioning him.  The witness understood that a caution was to be used for questioning any indictable offences.[52]She agreed that she did not caution the defendant during the conversation.[53]After hearing submissions, the magistrate ruled that this was not an indictable matter and there was no requirement under the Police Powers and Responsibilities Act 2000 to give a warning.  The magistrate however considered it would be unfair to admit the evidence and excluded the evidence of the police officer insofar as statements were made in the rear of the ambulance by the appellant.[54]The police officer then gave evidence that they took the appellant to the Prince Charles Hospital where he was belligerent, angry and making a number of accusations towards the police and her, referring to the fact that his child was in his ex-partner’s home with her unsecured fire arms.[55]He repeatedly said to the police officer “you with the badge on your tit,” making derogatory comments and repeating about his son.[56]After he was placed in the triage area he became abusive again and was moved to the back area of the triage so he was pushed into an area where there were less people and under a camera.  He was abusing other people, security officers arrived and he called them “cunts” and was aggressive to them as well.[57]The conduct was recorded by a camera in the triage and Officer Griffiths operated a body worn camera.[58]The video recording from the hospital entrance in triage was played.[59]The first video shows the hospital entry.  There is no sound but it is clear that the appellant, whilst on a trolley, was abusive, yelling at people, sitting up, gesticulating, disturbing people who were looking over at the situation.  He is then taken to the triage area and 9 minutes into the video one can see four security officers restraining him on the floor and a sedative is administered at about 9.50 minutes and then he is placed on a trolley.  Video 2 is of the triage area which shows him being brought in at about 11.08pm.  He was sitting up, yelling and people were told to leave the area.  Security officers arrived at about 11.10pm.  At 11.11pm he got up to leave but was arrested by the police with the assistance of the security officers and taken out of view.  He was then taken through on a trolley at 11.14pm.  The officer gave evidence that a road side breath test was conducted by another police officer but she is unaware of that reading.[60]During the period before he was placed in handcuffs his behaviour escalated and four security officers had to attend.  There were verbal taunts and she ended up handcuffing the defendant and telling him he was under arrest for public nuisance.[61]The s 95A certificate concerning the video was tendered as Exhibit 1.[62]The officer gave evidence that whilst in the hospital she had a blood sample kit, each particular kit had its own individual bar code.  The sample of blood was taken from the appellant, bar codes were placed on the paper work and the blood sample was placed into a canister which was taken back to the Sandgate police station, placed in a fridge and the relevant details were put into the report system.[63]Exhibit 3 was the sample blood kit.  At the time the security officers surrounded Mr Harvey in the video there was lots of name-calling, abusive threats and he was acting in a threatening manner.  Some of it was directed at the police officer and he was verbally abusing the security guards, calling them “cunts” and “assholes”.[64]He mentioned his son being subject to unsecured firearms and repeatedly said to her “you with that badge on your tit” and continued to be abusive.[65]She tried to diffuse the conversation but it escalated.  After Mr Harvey was moved out of the second camera angle the officer’s partner, Officer Griffiths, came in with the body worn camera.[66]The officer gave the appellant a formal requirement to supply a specimen of blood.  Exhibit 4 was the blood specimen certificate under s 80 of the TORUM Act which discloses that Dr Samota took a specimen of blood from the appellant at 11.40pm on 2 January 2016, the bar code being 455029384.[67]The appellant did not request a sample of blood at any time.[68]
  1. [21]
    Prior to the tendering of the certificate of analysis which stated that the defendant had a BAC of 0.15 percent, the appellant objected to the admission of the certificate and a voir dire was held. The appellant submitted that he was not provided a sample of the blood under s 80(10C) of the TORUM Act and as a result it would be unfair to admit the certificate. Secondly, it was submitted that the specimen was not transported in accordance with s 80(16A) of the TORUM Act.
  1. [22]
    The appellant gave evidence on voir dire that the police were required to act under s 80(10C) of the Act.[69]He gave evidence that the sample was not sent by registered post by but express post.[70]The magistrate ruled that the certificate of analysis should be admitted.  The magistrate accepted that s 80(10C) was not complied with but this did not render it unfair for the first blood sample to be tendered.  He found it was highly probative of the offence.  He accepted the evidence of Constable Thomas, he ruled that the taking and the transportation of the blood was done properly in accordance with the law and a mistake by the healthcare professional concerning s 80(10C) did not render the blood sample taken unlawful and admitted the evidence as Exhibit 5. 
  1. [23]
    After the doctor took the specimen of blood. The officer took possession of it and packaged it.[71]The officer gave evidence that as she was standing on one side of the bed with the doctor and Constable Griffiths being on the other side of the bed, she heard what appeared to be a spit at Constable Griffiths from the appellant.[72]She didn’t see any spit.[73]At the time the appellant was talking to security officers and making threats, calling them “assholes” and “pussies,” and calling Constable Griffiths similar things.  After she heard the appellant spitting she said that was a serious assault.[74]Exhibit 6 proved that the appellant was the owner of the vehicle involved in the incident and that he lived at 54 Biarra Street, Deagon.[75]
  1. [24]
    In cross-examination the witness agreed that she placed the alleged offence of drinking driving at 11.03pm.[76]She agreed that she obtained statements in November 2016 from people near the alleged traffic accident.[77]She said she believed that there was a requirement to take the blood sample within three hours of the alleged offence.[78]She agreed that the offence may well have been at 10.03pm.[79]Exhibit 7 was a Traffic Manual Public Edition issue.  Exhibit 8 was the notice of suspension or disqualification given to the appellant.  The witness agreed that originally the appellant did not want to go to the hospital but he changed his mind.[80]She also said though he was arrested for UIL.[81]She said she made a note of this.  She said that he was under arrest at the time he was at the hospital.[82]She denied that he was making statements about his son’s safety and she told him to stop and he attempted to leave the hospital.[83]She was aware that he had expressed his concerns to the Sandgate police previously about the son’s safety.[84]She said that he did not request a blood sample.[85]She disagreed that the gesture of spitting was made to the security officer and not to the police officer.[86]She agreed that he was not charged with serious assault until 16 May 2016 after reviewing the brief.[87]
  1. [25]
    John McDermott gave evidence that he was employed at the Prince Charles Hospital and was working on 2 January 2016. The appellant was brought in by the Queensland Police Service and there was a lot of noise and shouting from the triage area.[88]He recalled the appellant being brought in at about 10.30 to 10.35pm.  He was working as a security officer.  The appellant was on a trolley, abusing people.  They were trying to calm him down but he kept calling them “fucking cunt,” told them to go away and called Mr McDermott a “fucking fat cunt” and a colleague of his from Samoa as a “fucking black cunt”.[89]Officer Thomas tried to calm him down but he had continued abusing.  She warned him on three occasions to stop swearing and abusing people or she’d arrest him and then she arrested him.[90]After she arrested him she put the handcuffs on and he jumped off the trolley and tried to leave.  He and his colleagues stopped the appellant from leaving and restrained him.[91]He was then given an IM injection.[92]He calmed down and the blood was taken.[93]He was also medicated a second time.[94]
  1. [26]
    In cross-examination he said the appellant got up to leave after he was arrested.[95]
  1. [27]
    Kenneth Somers, an administration officer with the Police Service, in January 2016 received an email from Lisa Thomas stating there was a blood kit in the fridge and he removed the kit, signed the drop-safe register, delivered the parcel to Australia Post and printed out a packing slip.[96]He handed the kit over to the operator of the post office and received an Australia Post tracking site number.[97]
  1. [28]
    He agreed in cross-examination he used an express post bag to send the kit and was not familiar with the Police Operations Manual.[98]The reason he didn’t use registered post was that Australia Post had notified him that they had ceased using the registered post facility for everything exceeding envelope size and express post was the same standard as registered post.[99]
  1. [29]
    Officer Peter Griffiths gave evidence that he attended the traffic crash in January 2016 and he was sent from that scene by his Sergeant to collect the blood kit after it became apparent the appellant would need treatment in a hospital.[100]He collected the blood kit and travelled to the hospital.  He received a phone call asking him to get there as quickly as possible.  When he got to the hospital the appellant was handcuffed in a treatment room and Mr Griffiths activated his body worn video camera and filmed the blood analysis being taken.[101]This was tendered as Exhibit 9.  I have watched the video and it shows that the defendant became very agitated towards police and the security officers and was restrained and at 10.34pm pursed his lips and moved his head forward and did a spitting motion towards the police officer.  In oral evidence the officer said that the appellant was quite disruptive and it took him a long time to settle down enough for a blood analysis specimen to be taken.  When the blood specimen was taken he became very angry again and said something to the officer, went into a tirade of abuse and then took a big intake of breath, sucked in his cheeks and spat at him.  The officer put the palm of his hand flat onto his face and held the face down into a pillow until sedated.[102]The officer did not recall of any spit hitting him but it was directed at him.[103]
  1. [30]
    In cross-examination he agreed that he didn’t see any spit on him.[104]He denied the proposition that it was just an expression of disgust.[105]The officer said the appellant attempted to spit at him. 
  1. [31]
    Dr Scott MacKenzie gave evidence he was working at the hospital on 2 January 2016. He recalled there was a disturbance in the triage area where somebody was being very loud and ultimately the man was restrained by security officers. The doctor followed them into the resuscitation area and the appellant was placed in one of the resuscitation rooms.[106]The appellant was agitated, abusive and threatening.  There were no head injuries and his behaviour was consistent with the consumption of liquor.[107]He agreed that the appellant was given at least one sedative.[108]He recalled the appellant being angry at everybody in the room including police officers and asking them what they were doing about his son.[109]
  1. [32]
    The appellant gave evidence that he didn’t remember too much about the events leading up to being put into the ambulance. In the morning two district officers came to talk to him about his son and his welfare. He recalled that some people came over to try and cheer him up and they went to get some more alcohol and snacks. He was in the passenger seat so was not driving, though he can’t recall who was driving the vehicle. The next thing he woke up and was in the seatbelt in the passenger seat trying to get out. He doesn’t remember getting out of the car but he recalls sitting on the grass having a few drinks out of a spirits bottle, waiting for people to arrive.[110]Someone said the police were coming and he said “I’m fucked” because the police had bashed him four times.  He agreed to go to hospital and was not told he was detained for anything.  He made it clear to Officer Thomas that he held her responsible for his boy’s safety.  At the hospital he wasn’t under arrest, people was being towards him and he was aggressive back and it got to the point where he said he was going.  She said, “If you don’t stop what you’re doing, I’m going to charge you with public nuisance”.  The appellant said “okay,” and that he was getting up and going if he wasn’t going to be charged.  As soon as he got off the bed he was charged and she had no right to do so.[111]He was then assaulted by the security officers and his breathing was restricted.  He was taken to the resuscitation room very distressed, his hands were in handcuffs.  He claimed he asked why he was there and I do note that he never said at that stage he hadn’t been driving.[112]The gesture of spitting was simply a gesture, there was no spit and it was made at one of the security officers standing to the left of the police officer.[113]
  1. [33]
    In cross-examination, he agreed that the vehicle involved was registered to him and the accident occurred at Biarra Street, Deagon.[114]He did not recall who was in the driver’s seat.  He denied that he was in the driver’s seat.  That was suggested to him that he never put to any of the witnesses that he had sat on the grass drinking some bourbon and denied that it was a recent fabrication.[115]He agreed that he had had a few drinks and that’s why he didn’t drive to get the alcohol.[116]He volunteered to go to the Prince Charles Hospital.  He denied that he was arrested by Constable Thomas in respect of the public nuisance charge.[117]He did not recall the words he was yelling but he agreed he was very upset and agitated.[118]He did not deny that he made reference to “a badge on her tit” when talking to Constable Thomas.[119]He agreed he couldn’t remember everything that happened.[120]He said he was being assaulted at the time of the spitting gesture and it was in self-defence.[121]

Defence submissions below

  1. [34]
    In submissions, the appellant submitted that the prosecution had not proved its case. He agreed that he did not put to the police witnesses that he was drinking while sitting on the grass. He deliberately didn’t as he didn’t ask questions he did not know the answer to.[122]He submitted the prosecution had no case.  It was submitted that the prosecution had not proved he was the driver of the car involved in the traffic accident, that there was time for someone to flee or hide.  There was no evidence to disprove his evidence.  He then submitted that the evidence of time was sketchy and it could not be proved that the blood sample was taken within three hours of the alleged UIL offence.[123]He also submitted that the sample was illegally taken on the same grounds he had previously submitted, and further, he repeated that he had deliberately not cross-examined the prosecution witnesses about drinking the spirits after the accident.[124]He submitted that he was voluntarily at the hospital.  He was not arrested, detained or under a direction and he simply got up to leave.  Officer Thomas stopped this and assaulted him and directed the hospital staff to assault him.[125]He relied on s 25 of the Criminal Code because he was trying to get the police to act on his concerns for his son.  He only used bad language which was not disorderly.[126]As to the serious assault he said at the time he was being assaulted by police.  His actions were in self-defence and he also relied on s 24 of the Criminal Code and the defence of emergency.  He also pointed out that there was no evidence of saliva leaving his mouth or hitting anybody and he was not charged until 16 May 2017.[127]He submitted his conduct did not cause a disturbance or was disorderly and s 245 had not been established as it was a gesture of disgust only.[128]

Prosecution submissions

  1. [35]
    The prosecution submitted there was significant evidence of the appellant’s intoxication and submitted the only rational inference on the evidence was that the appellant was the driver of the motor vehicle when it crashed.[129]With respect to the disorderly conduct charge the prosecution relied on Andrews v Rockley[130]It was submitted that the disorderly conduct started on entry to the hospital and continued throughout.  With respect to the assault the prosecution relied on the definition of assault in the Criminal Code and submitted that given the appellant’s actions and the proximity of the officer assault had been proved.  It was submitted that the defences had disproved beyond reasonable doubt. 

Magistrate’s decision

  1. [36]
    The magistrate noted the onus of proof and noted that it was for the prosecution to disprove defences raised on the evidence. The magistrate correctly directed himself onto the elements as to the elements of each charge. As to the UIL charge he found on all of the evidence beyond reasonable doubt that the appellant was the driver of the motor vehicle at the relevant time including the admission made to Mr Jay. He was satisfied that the evidence established conclusively that the reading was 0.150 per cent and which was consistent with the observations of the appellant. He was satisfied that all elements of the offence had been proved beyond reasonable doubt. As to the charge of disorderly conduct the magistrate relied on Andrews v Rockley[131]and determined from the video evidence and the evidence of Constable Thomas that the appellant was verbally abusive towards security staff and called them “cunts” and repeatedly said to her “you with that badge on your tit” he used foul language and used other swear words.  In all of the circumstances the magistrate determined that the conduct was disorderly and caused a disturbance and would have annoyed anybody who overheard it.  The magistrate found that s 25, the defence of emergency had been excluded because even if Mr Harvey was concerned about his son he had plenty of time that day to drink alcohol to excess and drive his car and spend his time with friends.  As to the serious assault count he was satisfied that the officer was acting in the execution of his duty to assist the taking of a blood sample.  He considered the footage, the abuse and he leaned forward with a forward motion of his head making a spitting motion towards Constable Griffiths.  He found it was a deliberate act towards the Constable and nobody else although the act did not produce expelled spittle.  In those circumstances he found that this was an assault within s 245 of the Criminal Code.  Self-defence was excluded because he was lawfully arrested and the restraint was necessary in light of his conduct.  Mistake of fact was also excluded and in the circumstances the appellant was found guilty of that charge.

Appellant’s submissions to this court

  1. [37]
    In written submissions the appellant submitted:
  1. (a)
    the failure to give him a second sample was in breach of s 80(10C) of TORUM;
  1. (b)
    the certificate of analysis should have been excluded;
  1. (c)
    the magistrate ignored the fact it was not taken, handled or stored under the Police Manual;
  1. (d)
    he was not positively identified as the driver;
  1. (e)
    the admission to Mr Jay should not have been admitted;
  1. (f)
    his evidence should have been accepted;
  1. (g)
    it was not proved the sample was taken within three hours of the accident;
  1. (h)
    it did not matter he did not put to the Crown witnesses he was drinking after the accident.
  1. [38]
    In a handwritten outline he made derogatory comments about the magistrate and relied on evidence concerning his son.
  1. [39]
    In oral submissions the appellant submitted:

As to count one –

  1. (a)
    the certificate should have been excluded;
  1. (b)
    it was not proved he was the driver; and
  1. (c)
    the sample was not taken within three hours.

As to count two –

  1. (a)
    he was entitled to leave the hospital and was unlawfully arrested; and
  1. (b)
    he was not guilty of the charge as s 25 of the Criminal Code could not be excluded.  He tendered further documents in that regard.[132]

As to count three –

  1. (a)
    it was not an assault;
  1. (b)
    he was not lawfully arrested; and
  1. (c)
    self-defence and mistake were not excluded by the prosecution.

Respondent’s submissions to this court

  1. [40]
    The respondent in written submissions, submitted:
  1. (a)
    the magistrate was entitled to reject the appellant’s evidence;
  1. (b)
    the appellant deliberately chose not to put to Crown witnesses that he was drinking after the accident and the magistrate was entitled to rely on Browne v Dunn;[133]
  1. (c)
    the circumstantial case clearly proves the appellant was the driver of the car;
  1. (d)
    the certificate was taken within three hours of the incident;
  1. (e)
    there was no requirement to give the appellant a second sample of blood;
  1. (f)
    the appellant was lawfully arrested for public nuisance under s 365(1) of the Police Powers and Responsibilities Act 2000 (Q);
  1. (g)
    mistake as to the arrest is irrelevant;
  1. (h)
    public nuisance was proved here.  The video evidence proves it;
  1. (i)
    emergency was clearly excluded;
  1. (j)
    self-defence was excluded as the appellant was not unlawfully assaulted;
  1. (k)
    an attempt to spit was sufficient to constitute an assault;
  1. (l)
    bias cannot be proved; and
  1. (m)
    the penalties are within the sentencing range.

Discussion

UIL offence

  1. [41]
    Section 79(1) (a) of TORUM provides:

“(1) Offence of driving etc. while under the influence

Any person who, while under the influence of liquor or a drug— 

  1. (a)
    drives a motor vehicle, tram, train or vessel; or
  1. (b)
    attempts to put in motion a motor vehicle, tram, train or vessel; or
  1. (c)
    is in charge of a motor vehicle, tram, train or vessel;

is guilty of an offence and liable to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding 9 months.” 

  1. [42]
    Section 79(3) of TORUM provides:

“(3)  Presumption that defendant is under the influence of liquor if over high alcohol limit if on the hearing of a complaint of an offence against subsection (1) the court is satisfied that at the material time the defendant was over the high alcohol limit, the defendant is conclusively presumed to have been at that time under the influence of liquor.” 

  1. [43]
    In this case the prosecution relied on the fact that the certificate of analysis shows the appellant had a blood alcohol reading of 150 milligrams per 100 millilitres of blood,[134]but also on in the appellant’s indicia.
  1. [44]
    It must be borne in mind that if admissible the certificate of analysis was under s 80(16B) of TORUM is evidence of the matters stated in the certificate unless the defendant proves to the contrary.
  1. [45]
    The first element to be proved was whether the appellant was the driver of the vehicle. Turning firstly to the charge of driving under the influence of liquor it is my respectful view that the magistrate was entitled to reject the evidence of the defendant and infer that the appellant was the driver of the vehicle. It was not to the appellant’s credit that he did not name or refused to name the person he alleged was driving the vehicle. His evidence may be put to one side.
  1. [46]
    Turning to the prosecution case the fact is Mr O'Donoghue came upon the scene of the accident almost immediately after hearing the crash. There was no other evidence of any other person exiting or near the vehicle. Secondly, Mr Anderson gave no evidence of the presence of any other person.  His description of the person in the vehicle was entirely consistent with the defendant.  Thirdly, the ambulance officer identified the appellant.  This was the same person who had been seen by Mr O'Donoghue and Mr Anderson.  Fourthly, the appellant admitted to Mr Jay that he was the driver and had been drinking and had caused the car to roll.  Fourthly it was the appellant's car in the street in which he lived. Finally, at no stage in the body camera footage with audio did the appellant allege that he was not the driver. In all of the circumstances the magistrate was entitled to find beyond reasonable doubt he was the driver. 
  1. [47]
    Even if Mr Jay's evidence should have been excluded the other circumstances would justify the conclusion beyond reasonable doubt that the appellant was the driver.
  1. [48]
    The next point was whether the possibility could be excluded that the appellant had consumed liquor after the event. I am satisfied this possibility could be excluded beyond reasonable doubt. Firstly, the magistrate was entitled to reject the evidence of the appellant on this point. Secondly, the appellant deliberately did not put this to the witnesses. Thirdly, the witnesses gave no evidence that the appellant was drinking and indeed he did not suggest that to the ambulance officer during the conversation. He also conceded he had been drinking during the day. In the circumstances this possibility could be excluded beyond reasonable doubt.
  1. [49]
    The next point is whether the magistrate should have excluded the certificate of analysis. Section 80(8) of the TORUM Act provides:

“(8) Particular persons under arrest or detained may be required to provide specimen

Any person who—

  1. (a)
    is arrested for an offence against section 79 or 83; or
  1. (b)
    is arrested for any indictable offence in connection with or arising out of the driving of a motor vehicle by the person (including any offence against any provision of the Criminal Code, section 328A); or
  1. (c)
    is, for the purposes of subsections (8) to (8L), detained at or taken to a police station, or detained at or taken to a vehicle or vessel where facilities are available for the analysis by a breath analysing instrument of a specimen of breath or by a saliva analysing instrument of a specimen of saliva, or taken to a hospital or other place authorised under this section;

may, while at a police station, vehicle, vessel, hospital or other place authorised under this section as aforesaid, be required by any police officer to provide 1 or more of the following as any police officer requires—

  1. (d)
    a specimen of the person’s breath for analysis by a breath analysing instrument;
  1. (e)
    a specimen of the person’s saliva for saliva analysis;
  1. (f)
    a specimen of the person’s blood for a laboratory test.

…

(8C) Police officer may require specimen if person at hospital

If a person whom a police officer may require under subsection (2) or (2A) to provide a specimen of breath for a breath test, or a specimen of saliva for a saliva test, by the person (an authorising requirement) is at the hospital for treatment, that person may be required by any police officer to provide at the hospital—

  1. (a)
    if the specimen that may be required under the authorising requirement is a specimen of breath—a specimen of the person’s breath for analysis by a breath analysing instrument or a specimen of the person’s blood for a laboratory test; or
  1. (b)
    if the specimen that may be required under the authorising requirement is a specimen of saliva—a specimen of the person’s saliva for saliva analysis or a specimen of the person’s blood for a laboratory test.

…

(9A) Powers of a police officer making requisition under

subsection (9)

The police officer making the requisition may detain the person at a police station, vehicle, vessel, hospital or other place authorised under this section for a period of time that is reasonable in the circumstances to enable a doctor to attend there in connection with the provision by the person of a specimen of blood or urine or, as the case requires, such police officer may take the person to a place where, in the reasonable belief of such officer, a doctor or nurse is available for the purposes of the provision by the person of a specimen of the person’s blood.

(9B) Taking of specimen of blood by health care professional

A person who is required by a police officer, under this section, to provide a specimen of the person’s blood for a laboratory test must allow a doctor or nurse, or a qualified assistant directed by a doctor or nurse to take the specimen, to take the specimen when and as directed by and to the satisfaction of the health care professional, the health care professional being hereby authorised to take such specimen whether or not the person consents to the taking.

(9C) Providing specimen of urine as directed by doctor or nurse

A person who is required under subsection (9) to provide a specimen of the person’s urine for a laboratory test must do so when and as directed by a doctor or nurse.

(10) Requiring doctor or nurse to obtain specimen of blood for laboratory test

A police officer may require a doctor or nurse who is attending a person who is at a hospital for treatment to obtain a specimen of the person’s blood for a laboratory test, if the person—

  1. (a)
    is a person whom a police officer may require under subsection (2) or (2A) to provide a specimen of breath for a breath test or a specimen of saliva for a saliva test; and
  1. (b)
    is, or appears to be, unable to consent to the taking of the specimen of blood because the person is, or appears to be, unconscious or otherwise unable to communicate.

(10A) Obligations of doctors and nurses when taking specimen of blood

The doctor or nurse must—

  1. (a)
    take a specimen of the person’s blood that will enable the laboratory test to be carried out; or
  1. (b)
    ensure that a qualified assistant takes a specimen of the person’s blood that will enable the laboratory test to be carried out.

(10B) Qualified assistant may take specimen of blood

A qualified assistant may take the specimen of the person’s blood if directed to do so by the doctor or nurse.

(10C) Specimen of blood also to be given to person

The health care professional who takes the specimen of the person’s blood under subsection (10A)(a) or (10B) must, immediately after taking the specimen, take another specimen of the person’s blood and give it to the person as soon as practicable.”

  1. [50]
    It is my opinion that the request for the blood specimen was made under section 80(8)(f) or 80(8C) and the specimen here was taken under s 80(9B). It is further my opinion that s 80(10C) required the health care professional to provide the appellant another specimen of his blood and in my view there was non-compliance with this section.
  1. [51]
    Further it was admitted the sample was sent via express post as distinct from registered post. Section 80(16A) required the sample to be delivered in the way prescribed under a regulation. Section 183 of the Traffic Regulations 1962 (Q) states:

“For the purposes of section 80(16A) of the Act, delivery of a blood, saliva or urine specimen made other than personally must be made in accordance with the International Air Transport Association Dangerous Goods Regulations.”

  1. [52]
    In the Police Traffic Manual Chapter 7 this requires personal delivery or via Registered Post. I am not convinced that there was a breach of this section but even if there was for the reasons that follow I do not consider the evidence should have been excluded.
  1. [53]
    Because of this illegality the principles discussed in Bunning v Cross[135]were applicable.  It was held by Stephen and Aickin JJ at p 78 that the following features seem to be important considerations when considering the public policy/unlawfully obtained evidence discretion:
  1. Was the unlawfulness as a result of a mistake or conscious trickery with deliberate disregard of the law.
  1. The nature of the illegality and whether it affects the cogency of the evidence.
  1. The ease with which the law might have been complied with.
  1. The nature of the crime charged.
  1. The intention of the legislature.
  1. [54]
    In this case I am not satisfied that the magistrate erred in the exercise of his discretion and indeed I would exercise the discretion the same way. Firstly, it seems to me that it was not seriously challenged that the reading on the certificate was actually correct[136]. The appellant made admissions to drinking including on his version after the accident.  Secondly, it is not suggested there was any tampering with the blood sample in this case. Indeed the same bar code appears on the relevant exhibits.  Thirdly, it seems to me that the failure to provide him a second sample was a mere oversight. The posting by express post achieved the same purpose as registered post. Fourthly on my view of the entire evidence the police and administration officer were acting conscientiously in this matter.  In all of the circumstances despite the submissions made by the appellant I am of the view that the evidence ought not to have been excluded. Also for substantially the same reasons I do not consider the evidence was unfairly obtained. 
  1. [55]
    The next point relied upon by the appellant was that there was insufficient evidence that the blood sample was taken within three hours of the incident[137]. Also section 80(16F) of the TORUM provides:

“(16F) Three hours proof of alcohol or drug concentration by laboratory test

Evidence by an analyst or by a certificate referred to in subsection (16B) of the concentration of alcohol indicated to be present in, or of the drug or metabolite of the drug indicated to be present in, the blood of a person by a laboratory test of a specimen of the blood of that person is, subject to subsection (16G), conclusive evidence of the presence of the concentration of alcohol in, or the drug or the metabolite of the drug in, the blood of that person at the time (being in the case of such certificate the date and time stated therein) when the person provided the specimen and at a material time in any proceedings if the specimen was provided not more than 3 hours after such material time, and at all material times between those times.

Note—

The reference to drug in this subsection, because of its generality, includes a relevant drug.”

  1. [56]
    The Magistrate correctly found that the incident occurred on 2 January 2016.[138]
  1. [57]
    In this case the clear evidence was that the traffic incident occurred somewhere between 10.00 pm and 10.30 pm. This was clear on the evidence of the civilian witnesses. The blood sample was taken at 11.40 pm at the hospital. In my view it was conclusively established that the sample was taken within the three hour period.
  1. [58]
    But even if the certificate were to be excluded it is my view there was otherwise sufficient evidence the appellant was under the influence[139].
  1. [59]
    In O'Connor v Shaw[140]the Queensland Full Court held that to prove this charge the prosecution must prove that the defendant was at the relevant time in some observable degree influenced by liquor. It is not necessary to prove that his driving capacity was impaired.
  1. [60]
    In this matter there is the fact and manner of the accident. There is the evidence of Mr Jay of the agitation and conduct of the appellant and the slurring of his words. There is Officer Thomas’ observation that the appellant showed signs of intoxication and her evidence of his conduct. There is the evidence of Mr McDermott, Officer Griffiths and Dr MacKenzie of the appellant’s conduct. There is the video evidence.
  1. [61]
    In my view it was proved beyond reasonable doubt the appellant was under the influence.
  1. [62]
    The final ground of appeal relating to Count 1 is that the magistrate was biased. I have read all of the transcript, have considered the appellant’s submissions and can find no evidence of ostensible or actual bias and reject that ground of appeal. In those circumstances I consider the conviction of Charge 1 is justified.

Public Nuisance

  1. [63]
    Turning then next to the charge of conduct causing a public nuisance. Section 182 of the Hospital and Health Boards Act provides:

“182  Conduct causing a public nuisance

A person must not be disorderly or create a disturbance on health services land.

Penalty: Maximum penalty—20 penalty units.”

  1. [64]
    In Coleman v Power[141]Gleeson CJ noted that “disorderly behaviour refers to any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in or in the vicinity… [and] the words are directed to conduct which at least is likely to cause a disturbance or annoyance to others.” His Honour noted that Turner J pointed out that the behaviour had to be such as would tend to annoy or insult people sufficiently deeply or seriously to warrant the interference of the criminal law. McCarthy J pointed out that to be characterised as disorderly the conduct had to be likely to cause a disturbance or annoy others considerably. 
  1. [65]
    In Andrews v Rockley[142] Judge Rackemann stated that:

“Disorderly conduct is ‘that which is likely to cause disturbance or to annoy or insult others sufficiently deeply or seriously to warrant the interference of the criminal law’.”

  1. [66]
    Further in Police v Christie[143]it was said:

“To behave in a disorderly manner is to act in a manner which contravenes good conduct or proper conduct.  The behaviour in respect of which the section speaks is behaviour in a public place, so it becomes simply a question of whether or not the behaviour in a public place seriously offends against those values or orderly conduct which are recognised by right thinking members of the public.  There are certain manifestations of conduct in a public place which are an affront to and an attack on recognised public standards and orderly behaviour which well-disposed persons should stigmatise and condemn as deserving of punishment… The conduct must be serious enough to incur the sanction of a criminal statute.”

  1. [67]
    I have considered all of the evidence and watched the videos carefully. In my view the magistrate was correct in finding that this charge had been proved beyond reasonable doubt. The appellant was abusive, obnoxious, was swearing at people, was disturbing the peace in the hospital, people were moving away from the area and were staring at the situation. All of this occurred prior to his arrest for the charge and also thereafter. I am satisfied having reviewed the evidence beyond reasonable doubt that the charge was proved.
  1. [68]
    As to the suggestion that s 25 the defence of emergency applied that can easily be disposed of.
  1. [69]
    Section 25 of the Code provides:

“Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”

  1. [70]
    The appellant no doubt did have some concerns about his son’s welfare but in order for emergency to apply there must be a “sudden or extraordinary” emergency such that “an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise”. I do not think the section even applies to this case. But even if by chance arguably it did there was no extraordinary or sudden emergency here. The dispute in which the appellant had been involved concerning his son had been going on for some time. He had all day to do something about but spent his time drinking with friends and then going to the hotel to get some more alcohol. He could have e.g. gone to see lawyers; filed an application before the court or he could have gone to see the police if his child was in danger. It certainly did not justify his acting as he did at the hospital. I do not consider a person in his shoes could only have acted as he did- being abusive, swearing at staff etc.
  1. [71]
    The Western Australia Court of Appeal noted in Ajayi v R[144](with reference to the Commonwealth Criminal Code provision) that the defence would only be available in very limited circumstances. In that case the appellant was unsuccessful in her appeal where she alleged that her conduct in importing a marketable quantity of a border controlled drug was excused because she alleged that her family had been threatened with physical danger several days prior to the flight from Nigeria unless she imported the drug. As a result she ingested 99 pellets containing cocaine. The court found that that committing the offence was not the only reasonable way to deal with the alleged emergency.[145]
  1. [72]
    An example of a successful defence would be like that considered by the Court of Appeal in R v GV[146]where a person was forced to drive dangerously to escape a pursuing vehicle the occupants of which had made threats and thrown objects at the defendant. 
  1. [73]
    Further a delay in response whilst not decisive is certainly a relevant consideration.[147]    
  1. [74]
    As to the equivalent defence of necessity the New South Wales Court of Appeal in R v Rogers[148]noted at page 546:

“[T]he corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.”

  1. [75]
    In the circumstances in my view the prosecution had clearly disproved this defence.
  1. [76]
    I have already found that the ground of appeal concerning bias has not been established.
  1. [77]
    The appellant sought to rely on a number of documents to justify the defence of emergency namely notices of disposal of firearms and various documents filed in the Family Court. I have marked these as Exhibit 1. The Crown objected to the tender of these documents. I have considered all of the documents but reject their tender. In my view it has not been established that special reasons[149]have been shown to admit the documents. But even if there was at best for the appellant, the documents simply show the appellant does have concerns for his son, but it does not advance the defence of emergency bearing in mind the matters I have mentioned in the preceding paragraphs. 
  1. [78]
    I observe that the family report was prepared a year prior to the present offending; the allegations concerning the maternal family’s possession of illegal weapons was an allegation first made quite some time before the offences[150]and the allegations by the appellant were the subject of affidavit material in the Federal Circuit Court in 2014 and 2015- well prior to the present offences.         
  1. [79]
    The conviction on the charge was justified.

Serious Assault

  1. [80]
    As to the serious assault in my view also this charge was established beyond reasonable doubt.
  1. [81]
    Firstly under section 365 (1) of the Police Powers and Responsibilities Act 2000 (Q) the police had been entitled to arrest the appellant for public nuisance.
  1. [82]
    Secondly he had been validly detained for the purpose of taking a blood sample.[151]I conclude Officer Griffiths was acting in the execution of his duty. Indeed I find the public nuisance continued.
  1. [83]
    As to the assault section 245 of the Criminal Code provides:

“245 Definition of assault

  1. (1)
    A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
  1. (2)
    In this section—

applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.” 

  1. [84]
    In this case it is my view having viewed the video and considered the evidence given by Officer Griffiths that there was a bodily act or gesture to threaten to apply force of any kind to the person and other without the other’s consent under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose. In my view there was a clear spitting motion with the head moving forward towards the police officer who was in the immediate vicinity. In my view this was an attempt or threat to apply force and the police officer would have apprehended this. For example the pointing of an unloaded firearm at somebody where the accused pretends it is loaded[152]or a toy pistol at someone can amount to an assault.[153]Other examples may be thought of e.g. threatening to hose somebody whilst holding the hose but the hose is not turned on. 
  1. [85]
    Self-defence had been excluded by the prosecution beyond reasonable doubt as the appellant was lawfully being restrained for the purpose of the blood sample being taken and to calm him down and prevent him from committing further public nuisance. There was no unlawful assault by the officer on the appellant.[154]
  1. [86]
    Further, as noted earlier, the defence of emergency had also been excluded beyond reasonable doubt and mistake of fact had no application here. I do not consider the actions of the “attempted” spitting were proximate to a concern about the appellant’s child. I also do not consider a person in his shoes could only act as he did i.e. attempt to spit at a police officer who was lawfully detaining him. In all of the circumstances the conviction on the charge of serious assault was justified on the evidence.
  1. [87]
    For the reasons I have given the appeals against each conviction are dismissed.

Sentence

  1. [88]
    The question of severity of punishment remains. The appellant was born on 14 March 1965 and was 51 years of age at the time of trial. Exhibit 1 was his criminal history which included the following:
  1. 29 July 2014 – Maroochydore Magistrate’s Court – commit public nuisance.  No conviction recorded.  Fined $500.
  1. Brisbane Magistrates Court – 1 May 2015.  Contravene domestic violence order by five.  No conviction recorded.  Recognisance $500 – good behaviour period six months.
  1. Brisbane Magistrates Court – 15 July 2015 – two by contravene domestic violence order – no conviction recorded – fined $500.
  1. Brisbane Magistrates Court – 20 November 2015 – contravene domestic violence order using carriage service to menace, harass or cause offence.  No conviction recorded – probation 12 months.
  1. Sandgate Magistrates Court – 3 December 2015 – failure to appear – conviction recorded $500.
  1. Brisbane Magistrates Court – contravene domestic violence order – two by breach of bail condition – 40 hours community service – no conviction recorded - $500 good behaviour bond – no conviction recorded.
  1. [89]
    I note the appellant was on probation when the present offences were committed. Exhibit 2 was the appellant’s traffic history which was not of much moment. Exhibit 3 was a letter relating to a job application. Exhibit 4 was a letter from Dr Ben McDarmont, a psychiatrist dated 30 July 2005 which indicated that the appellant had a working diagnosis of obsessive compulsive disorder deriving benefit from medication. There was no evidence of any psychotic illness. At no time had he voiced any thought to harm his son, ex-partner or her family. There was a letter from the Deagon Family Medical Centre as to the appellant’s problems and a GP mental health care review for the appellant worried about the safety of his son as the in-laws had fire arms.
  1. [90]
    The prosecution submitted to the magistrate that giving his age a heavy fine would be appropriate particularly bearing in mind the lack of similar offending.
  1. [91]
    The appellant submitted that a work licence would be appropriate but the magistrate correctly informed the appellant that one was not available because of the reading involved. He submitted that his traffic history was reasonably “clean” and he was on anti-psychotic and depressive medication. He submitted that he was very distressed at the time of the offences and also intoxicated and perhaps under the influence of medication. He said that he was seeking admission as a solicitor and was hopeful that convictions would not be recorded. He submitted he had a law degree.
  1. [92]
    Ultimately the magistrate noted that the appellant had not displayed remorse for his conduct and found him belligerent and behaved in a very disrespectful way at the hospital and attempted to spit at Constable Griffiths which was a serious act. He noted that there were no previous similar offences and noted that he was particularly concerned about his son and his welfare and that doctors were trying to help him out with that. Ultimately he determined on the punishments to which I have already referred. He considered that the conduct was such that convictions ought be recorded.
  1. [93]
    Having considered all matters, in my view, the punishments imposed by the magistrate were well within the sentencing range and indeed were entirely appropriate in this case in light of the appellant’s prior history.

Conclusion

  1. [94]
    For the reasons given the appeals against each conviction are dismissed, the appeals against each sentence are dismissed and the orders made below confirmed.

Footnotes

[1][2017] QCA 132. 

[2][2009] 2 Qd R 489 at [4].

[3]Transcript day 1, p 1-51.15. 

[4]Transcript day 1, p 1-51.45. 

[5]Transcript day 1, p 1-52.15. 

[6]Transcript day 1, p 1-53.11. 

[7] Transcript day 1, p 1-54.17. 

[8]Transcript day 1, p 1-56.1. 

[9]Transcript day 1, p 1-56.45. 

[10] Transcript day 1, p 1-57.7. 

[11]Transcript day 1, p 1-57.40. 

[12]Transcript day 1, p 1-58.15. 

[13]Transcript day 1, p 1-51.32. 

[14]Transcript day 1, p 1-63.5. 

[15]Transcript day 1, p 1-63.17. 

[16]Transcript day 1, p 1-63.40. 

[17]Transcript day 1, p 1-65.1. 

[18]Transcript day 1, p 1-54.40. 

[19]Transcript day 1, p 1-66.10. 

[20]Transcript day 1, p 1-66.32. 

[21]Transcript day 1, p 1-67.7. 

[22]Transcript day 1, p 1-68.37. 

[23]Transcript day 1, p 1-73.11. 

[24]Transcript day 1, p 1-76.1. 

[25]Transcript day 1, p 1-76.5. 

[26]Transcript day 1, p 1-77.1. 

[27]Transcript day 1, p 1-81.15. 

[28]Transcript day 1, p 1-81.25. 

[29]Transcript day 1, p 1-81.27. 

[30]Transcript day 1, p 1-86.22. 

[31]Transcript day 1, p 1-86.35. 

[32]Transcript day 1, p 1-87.37. 

[33]Transcript day 1, p 1-88.20. 

[34]Transcript day 1, p 1-89.37. 

[35]Transcript day 1, p 1-91.20. 

[36]Transcript day 1, p 1-92.5. 

[37]Transcript day 1, p 1-92.22. 

[38]Transcript day 1, p 1-92. 

[39]Transcript day 1, p 1-93.20. 

[40]Transcript day 1, p 1-95.5. 

[41]Transcript day 1, p 1-95.45. 

[42]Transcript day 1, p 1-96.5. 

[43]Transcript day 1, p 1-96.35. 

[44]Transcript day 1, p 1-97.1. 

[45]Transcript day 1, p 1-97.7. 

[46]Transcript day 1, p 1-98.5. 

[47]Transcript day 1, p 1-99.17. 

[48]Transcript day 1, p 1-103.30. 

[49]Transcript day 1, p 1-103.41. 

[50]Transcript day 1, p 1-104.15. 

[51]Transcript day 1, p 1-104.37 i.e. glazed eyes; dilated pupils; drunk; dishevelled; motor skills not sharp.

[52]Transcript day 1, p 1-116.45. 

[53]Transcript day 1, p 1-117.1. 

[54]Transcript day 1, p 1-122.20. 

[55]Transcript day 1, p 1-122.42. 

[56]Transcript day 1, p 1-123.5. 

[57]Transcript day 1, p 1-123.27. 

[58]Transcript day 1, p 1-123.40. 

[59]Exhibit 2. 

[60]Transcript day 1, p 1-131. 

[61]Transcript day 1, p 1-131.37. 

[62]Transcript day 2, p 1-9.15. 

[63]Transcript day 2, p 1-13.40. 

[64]Transcript day 2, p 1-14.45 – 1-15.1. 

[65]Transcript day 2, p 1-16.17. 

[66]Transcript day 2, p 1-17.5. 

[67]The certificate was admissible under s 80(18) of the TORUM Act and was evidence of the matters stated therein unless the contrary was proved. 

[68]Transcript day 2, p 1-19.17. 

[69]Transcript day 2, p 1-45.22. 

[70]Transcript day 2, p 1-46.46. 

[71]Transcript day 2, p 1-55.10. 

[72]Transcript day 2, p 1-55.40. 

[73]Transcript day 2, p 1-56.12. 

[74]Transcript day 2, p 1-56.20. 

[75]Transcript day 2, p 1-58.30. 

[76]Transcript day 2, p 1-59.3. 

[77]Transcript day 2, p 1-60.22. 

[78]Transcript day 2, p 1-61.17. 

[79]Transcript day 2, p 1-62.15. 

[80]Transcript day 2, p 1-74.32. 

[81]Transcript day 2, p 1-75.23. 

[82]Transcript day 2, p 1-75.42. 

[83]Transcript day 2, p 1-80.7. 

[84]Transcript day 2, p 1-82.45. 

[85]Transcript day 2, p 1-83.35. 

[86]Transcript day 2, p 1-94.22. 

[87]Transcript day 2, p 1-94.25. 

[88]Transcript day 2, p 1-96.22. 

[89]Transcript day 2, p 1-97.5. 

[90]Transcript day 2, p 1-97.20. 

[91]Transcript day 2, p 1-97.25. 

[92]Transcript day 2, p 1-97.35. 

[93]Transcript day 2, p 1-98.5. 

[94]Transcript day 2, p 1-99.1. 

[95]Transcript day 2, p 1-99.17. 

[96]Transcript day 2, p 1-100.20. 

[97]Transcript day 2, p 1-101.5. 

[98]Transcript day 2, p 1-101.40. 

[99]Transcript day 2, p 1-103.1. 

[100]Transcript day 2, p 1-105.27. 

[101]Transcript day 2, p 1-105.45. 

[102]Transcript day 2, p 1-110.30. 

[103]Transcript day 2, p 1-110.35. 

[104]Transcript day 2, p 1-111.30. 

[105]Transcript day 2, p 1-112.1. 

[106]Transcript day 2, p 1-116.1. 

[107]Transcript day 2, p 1-116. 

[108]Transcript day 2, p 1-117. 

[109]Transcript day 2, p 1-118.30. 

[110]Transcript day 2, p 1-121.20. 

[111]Transcript day 2, p 1-122.42. 

[112]Transcript day 2, p 1-123.27. 

[113]Transcript day 2, p 1-123.32. 

[114]Transcript day 2, p 1-125.5. 

[115]Transcript day 2, p 1-125.40. 

[116]Transcript day 2, p 1-126.10. 

[117]Transcript day 2, p 1-126.35. 

[118]Transcript day 2, p 1-127.1. 

[119]Transcript day 2, p 1-127.10. 

[120]Transcript day 2, p 1-127.30. 

[121]Transcript day 2, p 1-128.10. 

[122]Transcript day 3, p 1-3.30. 

[123]Transcript day 3, p 1-4.25. 

[124]Transcript day 3, p 1-5

[125]Transcript day 3, p 1 – 5.37.

[126]Transcript day 3, p 1 – 6.10.

[127]Transcript day 3, p 1 – 7.30.

[128]Transcript day 3, p 1 – 7.42.

[129]Transcript day 3, p 1 – 10.30.

[130][2008] QDC 104.

[131]Ibid.

[132]Exhibit 1.

[133]    (1893) 6 R. 67. H.C.

[134]Section 79A(3) of TORUM.

[135](1978) 141 CLR 54. This decision was approved in Swaffield v R (1998) 192 CLR 159 at [59] and EM v R (2007) 232 CLR 67 at [54].

[136]I note the appellant did not give a notice under section 80(26) of TORUM challenging the certificate- also see discussion at Transcript day 1 p 1-43-44.

[137]See section 80 (8D) of TORUM.

[138]Reasons page 2.30.

[139]Garrow v Platsis; ex parte Platsis [1989] 1 Qd R 154.

[140][1958] Qd R 384 at p 385 per Philp J. Also see Grayson v Crawley; ex parte Crawley [1965] Qd R 315. 

[141](2004) 220 CLR 1 at [11] applying Melser v Police [1967] NZLR 437. I note the Chief Justice dissented as to the result but no dissent occurred concerning these statements of principle.

[142][2008] QDC 104.

[143][1962] NZLR 1109 at 1113.

[144](2012) 263 FLR 465 at [28].

[145]Per Buss JA at [50]-[54].

[146][2006] QCA 394.

[147]Warnakulasuriya v R (2012) 261 FLR 260 at [57].

[148](1996) 86 A Crim R 542.

[149]Section 223 (2) of the Justices Act.

[150]Page 1892 of Exhibit 1.

[151]Section 80(8) and 80(8B) of TORUM.

[152]Brady v Schatzel [1911] St R Qd 206.

[153]R v Everingham (1949) 66 WN (NSW) 122.

[154]Section 271 (1) of the Criminal Code Act 1899 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Harvey v Queensland Police Service

  • Shortened Case Name:

    Harvey v Queensland Police Service

  • MNC:

    [2017] QDC 310

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    22 Dec 2017

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMagistrates Court (No Citation)03 Feb 2017Mr Harvey convicted of one charge of driving under the influence; one charge of public nuisance and one charge of serious assault.
Primary Judgment[2017] QDC 31022 Dec 2017Appeal against conviction and sentence dismissed: Smith DCJA.
Appeal Determined (QCA)[2019] QCA 501 Feb 2019Application for an extension of time within which to apply for leave to appeal against [2017] QDC 310: Morrison and Philippides and McMurdo JJA.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Ajayi v R (2012) 263 FLR 465
3 citations
Jump To
Cite 1 - (2012) 263 FLR 465
Cite 2 - (2012) 263 FLR 465
Cite 3 - (2012) 263 FLR 465
Andrews v Rockley [2008] QDC 104
3 citations
Jump To
Cite 1 - [2008] QDC 104
Cite 2 - [2008] QDC 104
Cite 3 - [2008] QDC 104
Brady v Schatzel; ex parte Brady [1911] St R Qd 206
2 citations
Jump To
Cite 1 - [1911] St R Qd 206
Cite 2 - [1911] St R Qd 206
Browne v Dunn (1893) 6 R 67
1 citation
Jump To
Cite 1 - (1893) 6 R 67
Bunning v Cross (1978) 141 CLR 54
2 citations
Jump To
Cite 1 - (1978) 141 CLR 54
Cite 2 - (1978) 141 CLR 54
Coleman v Power (2004) 220 CLR 1
2 citations
Jump To
Cite 1 - (2004) 220 CLR 1
Cite 2 - (2004) 220 CLR 1
Em v The Queen (2007) 232 CLR 67
2 citations
Jump To
Cite 1 - (2007) 232 CLR 67
Cite 2 - (2007) 232 CLR 67
Forrest v Commissioner of Police [2017] QCA 132
2 citations
Jump To
Cite 1 - [2017] QCA 132
Cite 2 - [2017] QCA 132
Garrow v Platsis; ex parte Platsis [1989] 1 Qd R 154
2 citations
Jump To
Cite 1 - [1989] 1 Qd R 154
Cite 2 - [1989] 1 Qd R 154
Grayson v Crawley; ex parte Crawley [1965] Qd R 315
2 citations
Jump To
Cite 1 - [1965] Qd R 315
Cite 2 - [1965] Qd R 315
Melser v Police (1967) NZLR 437
2 citations
Jump To
Cite 1 - (1967) NZLR 437
Cite 2 - (1967) NZLR 437
O'Connor v Shaw [1958] Qd R 384
1 citation
Jump To
Cite 1 - [1958] Qd R 384
O'Connor v Shaw [1958] Qd R 154
1 citation
Jump To
Cite 1 - [1958] Qd R 154
Police v Christie [1962] NZLR 1109
2 citations
Jump To
Cite 1 - [1962] NZLR 1109
Cite 2 - [1962] NZLR 1109
R v Everingham (1949) 66 WN NSW 122
2 citations
Jump To
Cite 1 - (1949) 66 WN NSW 122
Cite 2 - (1949) 66 WN NSW 122
R v GV [2006] QCA 394
1 citation
Jump To
Cite 1 - [2006] QCA 394
R v Rogers (1996) 86 A Crim R 542
2 citations
Jump To
Cite 1 - (1996) 86 A Crim R 542
Cite 2 - (1996) 86 A Crim R 542
R v Swaffield (1998) 192 CLR 159
2 citations
Jump To
Cite 1 - (1998) 192 CLR 159
Cite 2 - (1998) 192 CLR 159
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 489
Cite 2 - [2009] 2 Qd R 489
The Queen v Morgan [1996] QCA 394
1 citation
Jump To
Cite 1 - [1996] QCA 394
Warnakulasuriya v R (2012) 261 FLR 260
2 citations
Jump To
Cite 1 - (2012) 261 FLR 260
Cite 2 - (2012) 261 FLR 260

Cases Citing

Case NameFull CitationFrequency
Harvey v Queensland Police Service [2019] QCA 52 citations
Queensland Police Service v McKenzie [2020] QMC 31 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.