Cleret v Commissioner of Police
[2017] QDC 41
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- Unreported Judgment
- Cleret v Commissioner of Police[2017] QDC 41
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Cleret v Commissioner of Police[2017] QDC 41
Cleret v Commissioner of Police[2017] QDC 41
DISTRICT COURT OF QUEENSLAND
CITATION: | Cleret v Commissioner of Police [2017] QDC 41 |
PARTIES: | DANIEL CLERET (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 102 of 2015 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Maroochydore |
DELIVERED ON: | 21 February 2017 |
DELIVERED AT: | District Court at Maroochydore |
HEARING DATE: | 22 January 2016 |
JUDGE: | Long SC DCJ |
ORDER: | The conviction of the appellant in the Magistrates Court at Maroochydore on 22 June 2015 of the offence of contravening a direction given by a police officer on 14 August 2014 and the further orders made in sentencing the appellant, are set aside and instead the appellant is found not guilty of that offence. |
CATCHWORDS: | APPEAL AND NEW TRIAL - s 222 of the Justices Act 1886 – Where the appellant was convicted on 14 August 2014 of contravening a direction given by a Police Officer under the Police Powers and Responsibilities Act 2000 – Where the appellant contends that the conviction was wrong in law and fact in that the appellant was incorrectly charged and convicted – Whether the magistrate failed to properly take into account the relevant statutory criteria – Whether the magistrate’s intervention during cross-examination by the appellant of the witness dissuaded the appellant from further pursuing cross-examination - Whether it is appropriate to remit the matter to the Magistrates Court for further hearing |
LEGISLATION: | Justices Act 1886, ss 222, 223, 223(2), 225(1), 225(2) Police Powers and Responsibilities Act 2000, ss 44, 44(a), 44(c), 46(1), 46(6), 47, 47(1), 47(1)(b), 47(5), 48, 48(1), 48(2), 48(3), 48(4), 633, 791, 791(1), 791(2) |
CASES: | R v Chong [2012] QCA 265 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 King v R (1986) 161 CLR 423 Rowe v Kemper [2009] 1 Qd R 2471 |
COUNSEL: | The applicant appeared on his own behalf A Stark for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Queensland Police Service Legal Unit for the respondent |
Introduction
- [1]By Notice of Appeal filed on 17 June 2015, the appellant appealed his conviction in the Magistrates Court at Maroochydore on 22 June 2015, of the following offence:
“That on the 14th day of August 2014 at Kenilworth in the Magistrate’s Court district of Maroochydore, in the State of Queensland, one Daniel Michael Cleret, without reasonable excuse, contravened a direction given by a Police Officer namely Senior Constable Adam Tickner SCAT under the Police Powers and Responsibilities Act 2000 namely You are to leave to (sic) confined to the Kenilworth Police Station including the office and surrounds forthwith. And you are not to return to this office for a period of 8 hours.”
- [2]That conviction was entered after the presiding magistrate found the defendant guilty of this offence after taking evidence from a single prosecution witness (the police officer who gave the direction that was the subject of the charge) and from the appellant.[1] Consequently, the appellant was fined $600, with recovery referred to SPER and no conviction was recorded.
- [3]In the Notice of Appeal, the single ground of appeal is stated as:
“Police Officer committed several acts of perjury.”
- [4]It is unnecessary to immediately embark upon any examination of the evidence in pursuit of this ground. This is because:
- (a)at the hearing of this appeal, the appellant was, without objection by the respondent, granted leave to proceed upon an amended ground of appeal, to the following effect:[2]
“That the conviction was wrong in law and fact, [in] that the appellant was incorrectly charged and convicted with respect to a direction under s 47 of the Police Powers and Responsibilities Act”; and
- (b)in the further written submissions for the appellant, made in relation to such an amended ground of appeal, it is conceded that the appeal should be allowed upon that ground.
- [5]It does however remain necessary to examine that concession, in the light of the evidence before the magistrate and his decision and to explain why it is appropriate to conclude that there has been error in the conviction of the appellant.
- [6]This is particularly because this appeal is brought pursuant to s 222 of the Justices Act 1886 and particularly, in the absence of leave to adduce any new evidence pursuant to s 223(2), this Court is required to conduct a review of the hearing below and ultimately, correct any error of the sentencing magistrate, determined on the basis of that review and this Court’s own conclusions, having due regard to the decision which is the subject of the appeal.[3]
The magistrate’s decision
- [7]The effect of the evidence and the contextual issues that arose are sufficiently captured in the following passages of the magistrate’s reasons for the appellant’s conviction. This also serves the purpose of noting the essential reasoning of the magistrate as to that finding of guilt and the specific findings in respect of issues of credibility, noting that the magistrate had the distinct advantage of hearing and seeing the witnesses give evidence, before him:
“The charge before the Court is that Mr Cleret, without reasonable excuse, contravened a direction given by a police officer, namely, Senior Constable Adam Tickner, and that direction was ‘You are to leave the confines of the Kenilworth Police Station, including [indistinct] surrounds, forthwith, not to return to this office for a period of eight hours.’[4]
Now, the facts that have emerged from the hearing is that Mr Cleret went to the particular property on the 13th of August 2014 on the basis of the recovery of property. Bear in mind, though, that some seven months prior, an order was made under the tenancy legislation for the vacation of the property and also for him to collect the property. He detailed in his evidence the circumstances why he did not turn up for seven months to collect the property, but it seems to me that was an inordinately long time in which to collect property, and given the nature of the property, it would clearly deteriorate in the weather in that time. He might have had some reasons why he wasn’t able to do anything for seven months, but it seems to me that he had an – could have done so. He should have done so earlier. Nevertheless, on the 14th of August, he turned up a second time to recover the property, and he then saw some property had been moved, and the police, of course, were called, and Senior Constable Tickner came to the property.[5]
……
Now, so Senior Constable Tickner spoke to Mr Cleret and spoke to the occupier on a number of occasions, and he formed the quite correct classification, in my view, that it was a civil dispute and, basically, there was nothing he could do. Whether – Mr Cleret makes the point that a criminal offence had occurred and some property had been removed, but I think the correct classification was that if the matter – having waited seven months to go there, if Mr Cleret wants something to do – something done about the property, he really needed to go to his lawyer and get that – some civil process or go back to the original court about the property.
But there’s nothing a police officer can do about deciding ownership of property, particularly the nature of the property, and it – he basically – Senior Constable Tickner, who’s an experienced police officer, formed the view that the matter had been finalised at that juncture because it was a civil dispute, and there was nothing he could do, and so he had dealt with the matter. So there was no point, really, in Mr – from his viewpoint – Mr Cleret going back to the police station to make a complaint about something in which he intended not to take any further action, and that was, really, not an unreasonable intention.
Now, so Senior Constable Tickner went back to the police station. He said Mr Cleret was there when he arrived and that there was a conversation over 15 to 16 minutes. He asked Mr Cleret three times to leave. Mr Cleret was eating an apple. He clearly had possession of an apple. It does strike me as somewhat odd that you go back to the police station to make a complaint about ownership of property and you’re carrying an apple or eating an apple. Whether he was eating or not, that doesn’t seem to be normal behaviour, but I don’t think anything really turns on about whether the apple or not was there or whether he was eating it. What does turn on is the fact that the officer was quite clear that he gave a direction to move on.
Now, Mr – he describes Mr Cleret’s behaviour as erratic. I think that’s not an incorrect description inasmuch as that he was [indistinct] he had a level of arousal because he was upset about loss of property. He had a raised voice, had the apple, but I think the basic point is that Senior Constable Tickner couldn’t do anything further about the matter, and Mr Cleret wanted to make a complaint, and the complaint was principally about the ownership of the property, and there was no point in that, from Senior Constable Tickner’s viewpoint, but he – the message did not seem to get through to Mr Cleret.
So he asked him a number of times to move, then he gave the formal move-on direction. I accept he made that direction, which was “You are to leave the confines of the Kenilworth Police Station, including [indistinct] surrounds, forthwith, not to return to this office for a period of eight hours.” I’m satisfied that direction was made. It was a reasonable direction. Basically, there was no point in Mr Cleret staying there any further. The matter had been discussed pretty thoroughly over 15 to 16 minutes. Mr Cleret said it was five minutes. Having heard Mr Cleret today give evidence on that, I’m satisfied it wouldn’t have been done in five minutes. I think 15 to 16 is probably a more realistic timeframe. And Mr Cleret didn’t – did not leave, so he was arrested. And he said to Senior Constable Tickner, “Go and arrest me,” and he was arrested and taken to the Noosa Heads Police Station.
So it’s apparent from the reasons I’ve given that I accept Senior Constable Tickner’s evidence. Where it differs with Mr Cleret’s evidence [indistinct] differs from Senior Constable Tickner, I accept Senior Constable Tickner’s evidence.
So, in summary, it was a simple inasmuch as there was a dispute about property. The officer went to the location, tried to resolve the matter, formed the view it was a civil matter and informed Mr Cleret that was the case, and then Mr Cleret wouldn’t accept that and wanted to pursue it and make a complaint and went and – he just would not leave when he should have left and should have perhaps went away to think about it and come back another day. It does seem throughout that Mr Cleret’s behaviour has been unusual in that he took seven months to go to the property. It – he took – he argued for 15 to 16 minutes at the police station when he was clearly given that move-on direction.
For all those reasons, I find Mr Cleret guilty of the offence beyond a reasonable doubt.”[6]
Principles
- [8]Before moving to the respects in which it is conceded that the magistrate erred, it is necessary to understand the law upon which the charge is premised and therefore the elements of the offence alleged pursuant to s 791(2) of the Police Powers and Responsibilities Act 2000 (“PPRA”).[7] First, s 791(2) provides as follows:
“(2) A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse.”
- [9]This is the same provision which is the subject of consideration in Rowe v Kemper.[8] That decision serves to highlight the requirement that it be established that the direction was given under the PPRA. That requirement also follows from s 791(1), which provides:
“(1) This section applies if a person is given a requirement or direction under this Act and no other penalty is expressly provided for a contravention of the requirement or direction.”
- [10]And accordingly, there is necessity for regard to those provisions which provide for the direction referred to in s 791 and which relevantly empower a police officer to give such a direction. In the first instance, s 48 provides:
“48 Direction may be given to person
- (1)A police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances.
Examples for subsection (1)—
1 If a person sitting in the entrance to a shop is stopping people entering or leaving the shop when it is open for business and the occupier complains, a police officer may give to the person a direction to move away from the entrance.
2 If a group of people have been fighting in a nightclub car park, a police officer may give the people involved in the fight a direction to leave the premises in opposite directions to separate the aggressors.
3 If a person has approached a primary school child near a school in circumstances that would cause anxiety to a reasonable parent, a police officer may give the person a direction to leave the area near the school.
- (2)However, a police officer must not give a direction under subsection (1) that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of—
(a) public safety; or
(b) public order; or
(c) the protection of the rights and freedoms of other persons.
Examples of rights and freedoms for subsection (2)(c)—
1 the rights and freedoms of the public to enjoy the place
2 the rights of persons to carry on lawful business in or in association with the place
- (3)Without limiting subsection (1), a direction may require a person to do 1 of the following—
- (a)leave the regulated place and not return or be within the regulated place within a stated reasonable time of not more than 24 hours;
- (b)leave a stated part of the regulated place and not return or be within the stated part of the regulated place within a stated reasonable time of not more than 24 hours;
- (c)move from a particular location at or near the regulated place for a stated reasonable distance, in a stated direction, and not return or be within the stated distance from the place within a stated reasonable time of not more than 24 hours.
- (4)The police officer must tell the person or group of persons the reasons for giving the direction“.
- [11]That provision is found in Part 5 of Chapter 2 of the PPRA and that part is headed “Directions to move on”. In addition, the following provisions of that part provide for both the concepts incorporated in s 48 and for the limitations upon the exercise of the power provided in s 48(2). Relevantly, it is necessary to note the following:
44 Application of pt 5
This part applies in relation to the following places (regulated places)—
- (a)public places, including a public place in a safe night precinct;
- (b)prescribed places that are not also public places.
…
46 When power applies to behaviour
- (1)A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s behaviour is or has been—
- (a)causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or
- (b)interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or
- (c)disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place; or
- (d)disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.
…
- (2)For this part, the person’s behaviour is a relevant act.
…
47 When power applies to a person’s presence
- (1)A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s presence is or has been—
- (a)causing anxiety to a person entering, at, or leaving the place, reasonably arising in all the circumstances; or
- (b)interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or
- (c)disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.
…
- (2)For this part, the person’s presence is a relevant act.
The respondent’s concession
- [12]As the basis for his concession that this appeal should be allowed and the matter returned to the Magistrates Court for a re-hearing, the respondent identified the cumulative effect of the following considerations:[9]
“(i) The arguable lack of clarity in the evidence of Senior Constable Adam Tickner with respect to the basis for the move on direction pursuant to section 47 of the Police Powers and Responsibilities Act. In his evidence in chief (transcript p 1-5, lines 20-25), Senior Constable Tickner stated that the appellant ‘was a bit argumentative, but nothing that was out of the ordinary to me in relation to police work. It was nothing – he wasn’t being obstructive to me personally but probably obstructive to me continuing my work of within the police station.’ This was not clarified. In cross-examination, Senior Constable Tickner reiterated that the presence if the appellant was obstructive in more definitive terms – ‘Your presence was obstructing and hindering my work process within the station, which I indicated to you on more than one occasion’ (Transcript p 1-22, lines 34-35) – but again did not clarify this beyond that statement. On its own, this arguable lack of clarity would not have been sufficient for the merit of the further ground of appeal, but is compounded by the other two factors below.
- (ii)The learned Magistrate’s intervention in the appellant’s cross-examination with respect to the above, which occurred just subsequent to the latter passage quoted. The magistrate appears to have done so on the basis of potential misapprehension of the repetitive nature of the questioning (from the previous page of the transcript) but have had the potential effect of curtailing the appellant’s cross-examination as to the manner in which the appellant was obstructing the police officer. This factor alone, for a self-represented defendant, may well substantiate the merit of the further ground of appeal, but certainly when compounded with the other factors.
- (iii)Most fundamentally, in his decision, the learned Magistrate did not elaborate as to his finding beyond reasonable doubt as to the elements of the offence, and in particular, did not provide any reasons for his finding that there had been a direction properly pursuant to section 47.”
- [13]The third consideration is the starting point. It may be noted that the decision and reasons of the magistrate were given ex tempore and immediately upon conclusion of the submissions made by the parties immediately after the taking of the evidence in this case. It may also be noted that the prosecutor made the following submissions:
“I submit, your Honour, that the time, date and place that the move on direction was given is not in dispute here, that the issue has been whether a lawful direction has been given and that – I submit that, according to the legislation, the Police Powers and Responsibility Act allows an officer to give a move on direction under section 44, and that’s where it’s allowed to be given, specifically under section 44(c), which is “a regulated place, including a business”, and that the officer has particularly done this move on direction at the police station, which was – meets the definition of a regulated place. It was open to the public at the time. It was a place where business or services were being conducted and the officer was the person doing that at that time.
As to why that move on direction was given is covered under the legislation at section 47(1)(b): that the defendant’s presence was interfering with the police business at that particular station at the time. The officer had formed that opinion after a period of time of argument between himself and the defendant. It wasn’t progressing the matters any further and, therefore, the officer has given that direction lawfully under 47(1)(b), which is the presence has interfered with the police business.
And then finally, your Honour, the third limb of the PPR move on is whether the direction was reasonable in the circumstance. And the officer gave a reasonable direction. That’s under section 48(3) – a reasonable direction to state that the defendant was to move for an eight-hour period from the Kenilworth Police Station. It was reasonable that he be moved away. He was obviously just going to stand there and be argumentative continuously with the officer, hindering him further of trying to get on with his duties.
So, your Honour, all of the provisions under the contravene have been met and the leading case that we have in this matter is Rowe v Kemper, which I will rely on. This – that was the matter of the vagrant in the Brisbane City who was given a move on direction and it was found to be unlawful because there wasn’t a reason for it. In this case, it’s clearly distinguishable from the Kemper matter and that the defendant was definitely in a business and his presence interfered with that business at the time.” [10]
- [14]Although, there appears a degree of disorganisation and some lack of clarity in the brief submissions made by the appellant, it may nevertheless be noted that he did specifically take issue in respect of matters relating to the legal authority for the giving of the direction, as follows:
“Once at the police station, I never displayed the behaviour warranting a move on direction, being that causing anxiety to person entering or leaving the place, interfering with trade or business or disrupting the peaceful and orderly conduct in any event.
Well, Mr Tickner is a trained police officer. I believe he’s handled very difficult positions or situations and I can’t believe that someone standing up in the foyer would’ve prevented him from working. Further, it never happened anyway because he never was working.”[11]
- [15]Although the reference to it by the prosecutor was only passing,[12] the decision in Rowe v Kemper[13] is notable in recognising and emphasising the need for attention to the legal authorisation of such a direction because of the need to establish, pursuant to s 791(2), the element that the direction alleged to have been contravened was “given by a police officer… under this Act.”
- [16]For present purposes, and because such issues were not engaged in argument on this appeal, it is appropriate to proceed upon the basis that:
- (a)The office, and more particularly the counter area of the Kenilworth Police Station, was relevantly a “regulated place” pursuant to s 44(a), in that it was a public place, particularly having regard to the public access allowed to it;
- (b)The description “trade or business at the place” in s 47(1)(b)[14] is apt to refer to the nature of the work performed by police officers at such a place;
- (c)It is not necessary to examine another issue considered in Rowe v Kemper and as to any implications of any lack of strict compliance with the requirements of s 633 of the PPRA,[15] or those in s 48(4); and
- (d)It is unnecessary to dwell upon any consideration as to whether there was, in the due performance of his duties, any discretion vested in the police officer as to whether to take the appellant’s complaint or whether any such discretion was properly exercised in this instance.
- [17]However, as can be discerned to have been engaged by the appellant’s submissions to the magistrate and on this appeal, there was necessity to determine whether it was established that the presence of the appellant there was “interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place” and more particularly that the police officer who gave the direction did then reasonably suspect that the presence of the appellant in that publically accessible area of the Police Station was such a “relevant act.”
- [18]From the reasons given by the magistrate it can be discerned that he has not specifically addressed any of the considerations arising under s 47(1)(b) but rather proceeded upon his views as to the reasonableness of the conduct of the police officer, in the circumstances and in the context of the attractable position of the appellant in seeking to have his complaint taken and recorded, apparently for the purpose of further investigation.
- [19]It may also be observed that it is not necessary to further examine the magistrate’s uncritical endorsement of the position taken by the police officer in so refusing to take any complaint from the appellant and communicating his unwillingness to do so, even before returning to the Police Station. However and whilst it can be observed that as was also noted in Rowe v Kemper,[16] this case also exemplifies the burden of a police officer in having to make quick assessments as to how to deal with situations that arise in dealing with uncooperative persons and in having to make on the spot assessment as to when and how to exercise potentially available powers. Notwithstanding, it can also be observed that it is at least not clear as to why the simple expediency of taking the complaint, in whatever detail was provided by the appellant and irrespective of any view as to what the inevitable outcome of it may have been, was not adopted as a means of dealing with the problem here.
- [20]Whilst s 48(1) involves an element as to giving “any direction that is reasonable in the circumstances”, as may be seen to be the approach in Rowe v Kemper,[17] that requirement is directed at the content of the direction, having regard to the circumstances that specifically empower the giving of it, rather than any justification for giving a direction. The justification for any direction is to be found in the additional requirement that the person(s) to whom a direction is to be given must be “doing a relevant act” and as has been noted, this engages the relevant provisions of ss 44 to 47 of the PPRA.
- [21]Moreover, it can be noted that there are critically important considerations that may and in this case did arise under those provisions. This is particularly when it is noted that the establishment of such a relevant act involves proof that the police officer giving the direction “reasonably suspects” that the person’s behaviour or presence “at or near a regulated place” is or has been having one or more of the effects stated as sub-paragraphs (a) to (d) in s 46(1) and repeated as (a) to (c) in s 47(1).
- [22]Such requirements are critically important because they involve not only proof of a subjective issue, that the officer did, at the relevant time, hold the relevant suspicion, but also that the particular suspicion was objectively reasonable in the circumstances or held on reasonable grounds.[18]
- [23]The second concession by the respondent relates to the magistrate’s intervention in the cross-examination by the appellant of the police officer[19] and correctly notes the effect it had in dissuading the self-represented appellant from further pursuing cross-examination that was clearly relevant to all issues arising in respect of the necessary reasonable suspicion. In this regard, it can be noted that after the appellant had the witness agree that he needed to tell someone to move on the following occurred. As the matter was not pressed or ruled upon by the magistrate, it is not necessary to determine whether there has been any separate error of law. The particular significance of this passage may be seen in confirmation that the absence of later reasons by the magistrate and in respect of the issues that arose under s 47 of the PPRA are indicative of his error in not properly appreciating the issues and or that they arose in this case.
- [24]Further and as may be gleaned from the first concession made by the respondent, these issues were not clearly addressed in the evidence-in-chief of the police officer and the intervention of the magistrate brought to an end any elaboration or clarification of what is described as the more definitive statement made in cross-examination. However, that statement may only be seen as more definitive as to the subjective view of the police officer and came in the context of the prevarication in evidence-in-chief. More importantly, what is completely lacking is any elaboration that might sensibly enable an objective assessment supporting the reasonableness or reasonable grounds for that subjective view or suspicion. That may also be seen in the following further passage in the evidence-in-chief of the police officer:
“And had a move on direction with Mr Cleret. How long did all of that take?---From the time that I attended at the station, to Mr Cleret in the station, it was probably 15, 16 minutes, I suppose, by the time we were in the station. There was some discussion in between times, which I can’t recall the exact wording, but Mr Cleret would not specifically give me any answers to any of my questions in relation to what the complaint was about. There was nothing specific within the conversation but I – apart from the fact that I’d asked him to leave on several occasions. He didn’t stand there. I actually at one stage attempted to just get on with my work, where he stood in the station, thinking that he would leave. He didn’t, which was a bit disconcerting for myself, sitting at the station. So that’s – after that, given time, the period when I’ve asked him to leave, I’ve then issued that formal move on direction. So I would suggest 15, 16 minutes or so all up.
And when you were doing your work, was there any conversation during that time?---I wouldn’t say that I was doing – I sat at my desk to attend to paperwork that I had involve in, from that day’s shift. The computer – I’d turned the computer on. So there was conversation intermittently with Mr Cleret while I was there, but he was clearly of the understanding that I wished him to leave the station. That was made quite clear, both previous in Margaret Street, Kenilworth, at the front of the station and then within the station. There was three or four periods of where I’d given warnings to Mr Cleret not to attend at the station, which he still – which he still did anyway.
And could you just reiterate the reason that you gave that?---His presence in – apart from being disconcerting, working in a small confined station, the station is still open to the general public. They come in to make complaints. People are sometimes reluctant to make a complaint or a – or pass what their issue is when someone else is standing in the station. So it’s not a private room, it’s an open room, so for anyone else to attend at the station – I’ll admit there was – at that time there was no one coming up to the station, but being an open station, someone can pull up and they do, on regular occurrences, walk straight up the steps from over the street or pull up in their car. So for me, the presence within the station was not only disconcerting to myself but anyone else that would have attended at that station.”[20]
Conclusions
- [25]Accordingly it is clear that the respondent’s concessions are appropriately made and that it is necessary to make an order setting aside the conviction of the appellant and necessarily also the orders consequently made as to the sentence of the appellant. The remaining question is as to whether it is appropriate, as the respondent seeks, to make an order pursuant to s 225(2) of the Justices Act 1886 remitting the matter to the Magistrates Court for further hearing.
- [26]As may be seen from the terms of s 225(2), the power is exercisable as a matter of discretion and here the relevant considerations do not favour such an exercise of discretion.
- [27]Although the alleged offence is not of a relatively serious kind, it can be noted that the consequence of the appellant’s arrest was that he found himself being taken from Kenilworth to the Watch House at Noosa before and after what was more likely hours rather than minutes, he was released on bail at Noosa to then otherwise pursue his liberty.
- [28]Further and having regard to the principles discussed in R v Chong[21] and Director of Public Prosecutions (Nauru) v Fowler,[22] it should be concluded that it is not in the interests of justice to do so. The cogency of the evidence in justification of a conviction is not sufficiently clear or doubtful and to the extent that this may be a product of the lack of sufficient attention to the elements to be proved at the trial, it is not now appropriate to allow a second opportunity to rectify or supplement that insufficient case.[23] And particularly where it remains likely that no more than the imposition of a modest fine would be the outcome if there was any further conviction of the appellant.
Orders
- [29]Accordingly it is appropriate to order pursuant to s 225(1) of the Justices Act 1886, that:
The conviction of the appellant in the Magistrates Court at Maroochydore on 22 June 2015 of the offence of contravening a direction given by a police officer on 14 August 2014 and the further orders made in sentencing the appellant, are set aside and instead the appellant is found not guilty of that offence.
Footnotes
[1]Although another witness was called by the appellant, objection was taken to the relevance of the evidence to be given and effectively no relevant evidence was taken from him. It may also be noted that as he was in this appeal, the appellant acted as a litigant in person at his trial.
[2]As it is most expediently expressed in the respondent’s further written submissions, filed 5/2/16, at [1.2].
[3]s 223 Justices Act 1886 and see: Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, at [33]-[34] and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, at 686-7; and cf: Fox v Percy (2003) 214 CLR 118, at [25], Teelow v Commissioner of Police [2009] QCA 84, at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327, at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, at [10], Commissioner of Police v Al Shakaji [2013] QCA 319 and White v Commissioner of Police [2014] QCA 121.
[4]This finding effectively adopts the evidence of the police officer at T 1-5.33-40.
[5]D2.1-19.
[6]D2.40 - 4.9.
[7]References are to the provisions as set out in the reprint current as at 1 January 2015 – revised version and containing the relevantly extant provisions at the date of the appellant’s alleged offence, on 17 June 2015.
[8][2009] 1 Qd R 247 at [43]. Although there it is referred to as s 445(2) and as it appeared prior to re-numbering.
[9]Respondent’s further outline of submissions, at [2.1]-[2.2].
[10]T1-37.32 – T1-38.18.
[11]T1-39.7-15.
[12]And incorrect as to the basis upon which that case was ultimately decided.
[13][2009] 1 Qd R 247.
[14]As it can be noted, the prosecution case was expressly put.
[15]Before renumbering and some amendment of it and as referenced in Rowe v Kemper, that provision appeared as s 391.
[16][2009] 1 Qd R 247, at [1] per McMurdo P and [84] per Mackenzie AJA.
[17]Ibid at [22]/[23], [67]-[73], [90]/[91] and [112]/[115].
[18]See Rowe v Kemper [2009] 1 Qd R 247 at [6], [70], [82] and [111].
[19]T1-22.40. But this should be viewed in the context of interventions to similar effect, that occur from T1.21.20.
[20]T1-6.33 – 1-7.18.
[21][2012] QCA 265 at [24]-[27].
[22](1984) 154 CLR 627.
[23]King v R (1986) 161 CLR 423.