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Reiman v Commissioner of Police[2021] QDC 242

Reiman v Commissioner of Police[2021] QDC 242

DISTRICT COURT OF QUEENSLAND

CITATION:

Reiman v Commissioner of Police [2021] QDC 242

PARTIES:

YVETTE-TERESE REIMAN

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

4/21

DIVISION:

Appellate

PROCEEDING:

Appeal against conviction pursuant to s 222 Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Tully

DELIVERED ON:

30 September 2021

DELIVERED AT:

Cairns

HEARING DATE:

22 July 2021

JUDGE:

Fantin DCJ

ORDER:

  1. Appeal dismissed.
  2. The proper officer of the court is to amend the Verdict and Judgment Record:
    1. For charges 3, 4 and 5, replace the words “Nil default” with the words “Refer to State Penalties Enforcement Register”.
    2. For charges 3 and 5, replace the words “28 Days” with “2 months”.
  3. No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION - where the appellant was convicted after a summary trial of driving and other offences – where the appellant appeals the conviction on the grounds that she is not bound by the statutory laws of Queensland, that she did not receive a fair trial, and that she acted in provocation and self defence

Legislation

Criminal Code Act 1899 (Qld), s 268(3), s 271(3), s 340(1)(b)

Justices Act 1886 (Qld) s 222, s 223, s 232(4)(a)

Transport Operations (Road Use Management) Act 1995 (Qld) s 123C(1), s 124

Transport Planning and Coordination Act 1994 (Qld) s 37

Cases

Allesch v Maunz (2000) 203 CLR 172

Teelow v Commissioner of Police [2009] Qd R 489

White v Commissioner of Police [2014] QCA 121

Robinson Helicopter Company Inc v McDermott & Ors (2016) 331 ALR 550

Fox v Percy (2003) 214 CLR 118

Warren v Coombes (1979) 142 CLR 531

Dwyer v Calco Timbers (2008) 234 CLR 124

Forrest v Commissioner of Police [2017] QCA 132

R v Stoneman [2013] QCA 209

Bradley v The Queen [2021] QCA 101

Bradley v The Crown [2020] QCA 252

Carnes v Essenberg [1999] QCA 339

Essenberg v R [2002] QCA 4

Re Skyring (1994) 68 ALJR 618.

Skyring v ANZ Banking Group Ltd [1994] QCA 143

Hubner v Erbacher [2004] QDC 345

Van den Hoorn v Ellis [2010] QDC 451

COUNSEL

The appellant appeared on her own behalf

S Shaw for the respondent

SOLICITORS

The appellant appeared on her own behalf

The Office of the Director of Public Prosecutions for the respondent

Background

  1. [1]
    On 26 May 2020, the appellant[1], who did not hold a driver’s licence, was driving an unregistered and uninsured car without number plates on the Tully Mission Beach Road. Police activated their siren. The appellant stopped her car, which remained partly on the roadway. Police asked her to move the car because its position was unsafe, so that they could speak to her about the absence of licence plates, and check if her car was registered. The appellant refused to move the car off the road and to get out of the car, despite direction to do so. More police were called and arrived. The appellant eventually got out of the car. In the course of speaking with a police officer, the appellant threw a bottle of iced coffee towards him. The liquid in the bottle hit him and another officer.
  1. [2]
    From that incident, the appellant was charged with seven offences.
  1. [3]
    After a summary trial in the Magistrates Court at Tully on 5 March 2021, the appellant was convicted of six of the seven charges. According to the Verdict and Judgment Record, the following orders were made. (Whether this record reflects what was said by the Magistrate at the hearing for charges 3, 4 and 5 is discussed below.)

Obstruct police officer, contrary to section 790(1)(b) of the Police Powers and Responsibilities Act 2000 (Qld) (Charge 2)

Conviction recorded. Three months imprisonment, wholly suspended for operational period of 18 months.

Driving of motor vehicle without a driver licence, contrary to section 78(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) (Charge 3)

Conviction recorded. Fined $1,000. 28 days to pay. Nil default.

Driving an unregistered vehicle, contrary to section 11 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld) (Charge 4)

Conviction recorded. Fined $327. Two months to pay. Nil default.

Driving an uninsured vehicle, contrary section 20(1) of the Motor Accident Insurance Act 1994 (Qld) (Charge 5)

Conviction recorded. Fined $530. 28 days to pay. Nil default.

Serious assault on Morgan Avery, contrary to section 340(1)(b) Criminal Code Act 1899 (Qld) (Charge 6)

Conviction recorded. Four months imprisonment, wholly suspended, for an operational period of 18 months.

Serious assault on Luke Kent Tamblyn, contrary to section 340(1)(b) Criminal Code Act 1899 (Qld) (Charge 7)

Conviction recorded. Four months imprisonment, wholly suspended, for an operational period of 18 months.

 

All terms of imprisonment to be served concurrently.

  1. [4]
    The appellant appeals against her convictions pursuant to section 222 of the Justices Act 1886 (Qld) (the ‘Justices Act’).  There was no challenge to the sentences imposed.

Grounds of appeal

  1. [5]
    The appellant appeared on her own behalf in the court below and on appeal.
  1. [6]
    The notice of appeal listed the following grounds of appeal:
  • “No due process
  • Error in fact of law
  • No binding contract
  • No evidence of jurisdiction
  • Affidavit not accepted as evidence”.
  1. [7]
    Based upon the appellant’s oral submissions (which were at times difficult to understand) and documents, the issues in the appeal can be summarised as follows:
  1. lack of jurisdiction: the appellant contends that she is not subject to any Queensland government statutes or proceedings, that the police acted without authority or jurisdiction, that she is not required to hold a driver’s licence, and the car she was driving is not required to be registered or insured under a statutory insurance scheme;
  1. lack of procedural fairness: the appellant contends that she was denied a fair trial; and
  1. provocation and self defence: the appellant contends that with respect to charges 6 and 7 (the two charges of serious assault police), the learned Magistrate erred in her consideration of the defences of provocation and self defence.
  1. [8]
    For the reasons that follow, the appeal should be dismissed.

Nature of appeal

  1. [9]
    The applicable principles for the hearing of such an appeal are not in dispute. To succeed, the appellant must demonstrate that the decision the subject of the appeal is the result of some legal, factual or discretionary error.[2]
  1. [10]
    The appeal is by way of rehearing on the evidence before the Magistrate (and any other evidence introduced with leave of this court) rather than a hearing de novo.[3] The court must consider each of the grounds of appeal having regard to the evidence and to determine for itself the facts of the case and the legal consequences that follow from such findings.
  1. [11]
    The rehearing requires this court to conduct a ‘real review’ of the evidence before the Magistrate and of the Magistrate’s reasons to determine whether they have erred in fact or law.[4] Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact.[5]
  1. [12]
    If, after conducting the necessary review, I am satisfied of the guilt of the appellant, it is appropriate to dismiss the appeal.

Summary of the evidence at trial

  1. [13]
    The prosecution called three police witnesses, and tendered various evidentiary certificates as well as the recordings of the police officers’ body-worn cameras.
  1. [14]
    The appellant elected to give evidence. With respect to charges 3, 4 and 5, she did not dispute that she was driving the car, that she did not hold a driver’s licence and that the car was unregistered. The appellant asserted that she was not required to be licenced, and that the car was not required to be registered or insured, for the reasons set out under the lack of jurisdiction ground below.
  1. [15]
    With respect to charges 6 and 7, the appellant’s evidence was to the effect that Officer Tamblyn had provoked her by knocking her cigarette out of her mouth to the ground, and that her actions in throwing the contents of the iced coffee bottle at him were justified in self defence.
  1. [16]
    I deal with each of the grounds of appeal below.

Lack of jurisdiction ground

  1. [17]
    For this ground, the appellant’s oral and written submissions, and the documents she sought to rely upon, included the following statements:
  1. “I, Yvette Terese, the affiant, am not a Legal Fiction Person nor a Corporate Entity or some kind of Partnership, BUT INSTEAD am a living breathing, sovereign, flesh and blood Human Being with a living soul, with a distinct Mind is capable of possessing Knowledge”;
  1. “I am a woman, a living woman. I am not dead or lost at sea. I stand under the jurisdiction of my flag[6]”;
  1. the appellant had renounced any “contract” or “agreement” with any government agency or entity;
  1. “slavery and peonage are immoral and fraud, misrepresentation, nondisclosure, intimidation, deceit, concealment of material fact, lying, and treachery are morally wrong”;
  1. the appellant had “absolutely no desire whatsoever to be a “client” (slave) of any governmental agency, state or federal”;
  1. the appellant had “unalienable/inalienable indefeasible rights to life, liberty, freedom and property”.
  1. [18]
    Despite the appellant’s apparently strongly held belief otherwise, none of these repeated incantations have any relevant legal effect.
  1. [19]
    The appellant also submitted that:
  1. she did not recognise Queensland as a jurisdiction of the Commonwealth of Australia and she is not subject to the statutory laws and jurisdiction of the State of Queensland, because laws were created by God, in the Bible, upheld by the Magna Carta and reflected in the constitution, and because of the operation of s 109 of the Commonwealth Act 1901;
  1. the police acted without lawful authority;
  1. the Magistrates Court and District Court are unlawful and have no jurisdiction over her;
  1. persons interacting with her must produce evidence of their lawful authority and pay a fee of “four-hundred-thousand dollars credit in gold or silver”;
  1. she was travelling under her “inalienable right” under the Magna Carta and ss 51 and 92 of the Commonwealth Constitution;
  1. the police were committing “war crimes” under the Geneva Convention;
  1. when arrested she was “kidnapped” and falsely imprisoned.
  1. [20]
    Despite contending that the District Court lacked jurisdiction and was a fraud, when invited to discontinue her appeal, the appellant declined to do so.[7]
  1. [21]
    It is unnecessary to answer every incomprehensible contention raised by the appellant when the unremarkable proposition that she is bound by the statutory law of Queensland is a complete answer to all her claims under this ground.[8]
  1. [22]
    Her submissions are misconceived and devoid of merit[9]. The jurisdictional arguments raised by the appellant have been considered and rejected in other cases. Just a few examples will suffice.
  1. [23]
    The argument as to the effect of Magna Carta and its supposed inconsistency with State legislation has been dealt with in a number of cases, the general thrust of which is that it is wrong to suppose that local legislation may not be made in conflict with the Magna Carta[10]:

“an applicable enactment, whether Queensland, Commonwealth or Imperial is capable in law of repealing Magna Carta either completely or to the extent that it is inconsistent with that enactment.”[11]

  1. [24]
    The appellant’s arguments were similar to those advanced unsuccessfully in Hubner v Erbacher [2004] QDC 345. I respectfully adopt the analysis of White DCJ at [10]-[17] in which he concluded that the appellant, as a resident of Queensland, was subject to the laws of Queensland, including those relating to vehicle registration, compulsory third party insurance, driver licensing and number plates.
  1. [25]
    See also Van den Hoorn v Ellis [2010] QDC 451 and Elliott v Commissioner of Police [2014] QDC 161.
  1. [26]
    The arguments advanced under this ground are an abuse of process. This ground of appeal fails.

Lack of procedural fairness ground

  1. [27]
    In support of this ground, the appellant submits that:
  1. she was not notified of the hearing in the Magistrates Court;
  1. the learned Magistrate erred in refusing to accept her affidavit;
  1. the appellant requested a hearing before a judge and jury, with no less than two judges; and
  1. the transcript of the hearing and decision by the Magistrate was not a true record of the proceeding.
  1. [28]
    As to the first issue, the appellant was given notice of the hearing, appeared and was self represented in the Magistrates Court. The appellant did not produce any evidence to support her submission that she was not given notice of the trial. The Magistrates Court file records that on 12 November 2020 when the matter was mentioned, the appellant was self represented. The file records “summary election”. The charges were listed for hearing at 9:30am on 5 March 2021.
  1. [29]
    On 5 March 2021 the appellant initially did not appear and a warrant was issued. The appellant later appeared, and the warrant was vacated. The learned Magistrate read out the charges. The appellant refused to enter a plea. Her Honour indicated to the appellant, correctly, that if she would not enter a valid plea she would enter pleas of not guilty on her behalf.  The learned Magistrate explained the trial procedure to the appellant. She referred to the onus of proof, evidence in chief, cross examination, the rule in Browne v Dunn, re-examination, a defendant’s right to give and call evidence, the order of addresses, and the right to object to evidence. The trial began. The prosecution called three police witnesses. The appellant cross examined those witnesses. The appellant gave sworn evidence. The appellant then addressed the court.
  1. [30]
    There was no unfairness to the appellant in proceeding with the hearing.
  1. [31]
    As to the second issue, the appellant sought to rely upon a document entitled “Affidavit of Truth”, which was not accepted. That affidavit was provided with the appellants’ submissions on this appeal. I am satisfied that it largely comprised matters raised in submissions and the learned Magistrate was correct not to accept its tender.
  1. [32]
    There was no unfairness to the appellant in proceeding in that way.
  1. [33]
    As to the third issue, the file records that the appellant elected a summary hearing. There was no unfairness to the appellant.
  1. [34]
    As to the fourth issue, the appellant submitted that parts of the transcript of the Magistrates Court hearing were incomplete and that the transcript had been “tampered with”. The issue of transcript accuracy was raised at mentions. I requested the prosecutor appearing on the hearing of the appeal personally listen to the entire audio recording of the hearing in the Magistrates Court and correct any inaccuracies in the transcript. Ms Shaw did that and provided an edited transcript, which became exhibit 1 in the appeal. The original transcript, the audio recording, and the edited transcript were all provided to the appellant. There remain a number of portions of the transcript of the Magistrates Court hearing marked “Indistinct”. Other parts of that transcript record that, despite the learned Magistrate’s request, the appellant refused to sit or stand at the bar table during the hearing. She was often obstructive. During the hearing in the Magistrates Court the appellant made a deliberate choice not to sit or stand at the bar table, where her oral submissions could be recorded. In those circumstances, the appellant cannot now complain that the transcript is incomplete or that parts of what she said may not have been recorded. In any event, the portions marked “Indistinct” are minor and insignificant in the context of the transcript as a whole.
  1. [35]
    There is no substance to this argument.
  1. [36]
    This ground of appeal fails.
  1. [37]
    Before turning to the third ground which relates to charges 6 and 7, for completeness I summarise the evidence before the Magistrate with respect to charges 2 to 5 inclusive.

Charge 2: obstruct police

  1. [38]
    There was unchallenged evidence from police that the appellant had stopped her car partly on the roadway at 4pm, that it was a busy time of day, and that the car was causing a traffic hazard.
  1. [39]
    There was unchallenged oral evidence and recorded body-worn camera footage that police first requested and then later directed the appellant to move her car off the road to a safe location. There is no doubt that police were lawfully entitled to give this direction. For about 25 minutes, she refused to comply with that direction and refused to get out of the car. She was placed under arrest. She held up to the closed window what appeared to be a bible and referred to the Magna Carta. The appellant admitted that she refused to move her car and refused to get out of her car, despite police direction. The police officers’ body-worn camera footage also confirms this.
  1. [40]
    There was sufficient evidence for the learned Magistrate to be satisfied beyond reasonable doubt that the appellant obstructed or hindered a police officer in the performance of his duties, and to find the appellant guilty of this charge.

Charges 3, 4 and 5: Driving unlicensed, driving unregistered vehicle, and driving uninsured vehicle

  1. [41]
    The appellant admitted that she did not hold a driver’s licence, that the vehicle was unregistered and that it had no number plates. The absence of number plates was visible in the police officers’ body-worn camera footage. The appellant’s case was, simply, that the relevant Queensland laws did not apply to her.
  1. [42]
    In the court below and on appeal, the appellant directed her arguments towards demonstrating that either the relevant regulation was not a valid law or that other legal rights, which she claimed to have, prevailed over such law. For the reasons referred to above under the first ground of appeal, these arguments have no merit.
  1. [43]
    The underlying conduct of the appellant that resulted in her conviction of these charges was her failure to comply with the laws of Queensland, which was her deliberate choice.
  1. [44]
    The prosecution tendered evidentiary certificates which became Exhibit 1. They were to the effect that the appellant was unlicensed, and the vehicle was unregistered and uninsured.
  1. [45]
    In the absence of evidence in rebuttal, the certificates were conclusive evidence of the matters stated in them.[12] Section 123C(1) Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM’) deems as evidence a certificate if it states a matter in schedule 1, column 1 of the Act and is signed by a person mentioned in column 2. The matters stated in the certificate are matters mentioned in column 1. The Chief Executive of the Department of Main Roads is a person mentioned in column 2. The person who signed exhibit 1 is not a person directly mentioned in column 2. But s 37 of the Transport Planning and Coordination Act 1994 (Qld) permits the Chief Executive to delegate their authority in such a case. It is unnecessary to prove the delegation unless the defendant in a matter give notices in a required way. That did not occur in this case and the description of the signer of the certificate as the delegate of the Chief Executive was sufficient. The certificate was to be taken as having been signed by the Chief Executive. It was thereby admissible and proof of the matter stated in the certificate. Because there was no evidence contradicting the matters certified, this was sufficient to establish the elements of the offence.
  1. [46]
    On the unchallenged evidence:
  1. the appellant was driving a motor vehicle without a driver licence, contrary to section 78(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) (charge 3);
  1. the vehicle was not registered, contrary to section 11 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld) (charge 4); and
  1. the vehicle was uninsured, contrary to section 20(1) of the Motor Accident Insurance Act 1994 (Qld) (charge 5).
  1. [47]
    The appellant was clearly guilty of all three offences.
  1. [48]
    The Magistrate imposed a fine for each offence. She ordered that the appellant be allowed two months to pay and in default of payment, the fines would be referred to the State Penalties Enforcement Register (SPER). The Verdict and Judgment Record (VJR) signed by the Proper Officer of the court did not accurately reflect those orders. For charges 3 and 5, under “Due date for Payment” it stated “28 days”, when this was not an order pronounced by the Magistrate. And for charges 3, 4 and 5, under “In default of payment” it stated “Nil Default” when the correct order was to refer it to SPER. It is appropriate to direct the Proper Officer of the court to amend the Verdict and Judgment Record, and I so order.[13]

Charges 6 and 7: serious assault police officer in execution of duties - the provocation and self defence ground

  1. [49]
    Charges 6 and 7 involved an offence under s 340(1)(b) of the Criminal Code 1989. The prosecution was required to prove that the defendant/appellant assaulted the complainant, that he or she was a police officer, and the officer was at the time acting in the execution of his or her duties.
  1. [50]
    The evidence of the police officer and the body-worn camera footage proved that while the appellant was standing beside the police vehicle, she threw the contents of her iced coffee towards them and the liquid landed on them. A person who strikes or otherwise applies force of any kind to the person of another without the other person’s consent is said to have assaulted that person. There is no suggestion that this occurred with the officers’ consent or that the officers were not acting in execution of their duties.
  1. [51]
    The appellant admitted doing this but submitted that she was provoked by Officer Tamblyn and acted in self defence.

Provocation

  1. [52]
    The defence of provocation, once raised, had to be excluded by the prosecution. If the assault was excused by law because the appellant was acting under provocation as defined, she was entitled to an acquittal of that charge.
  1. [53]
    Provocation is defined as “any wrongful act or insult of such a nature as to be likely, when done to an ordinary person,… to deprive the person of the power of self-control and to induce the person to assault the person by whom the act or insult is done or offered”: s 268(1) Criminal Code 1899. The appellant was not criminally responsible if she was in fact deprived by the provocation of the power of self-control; and acted on the sudden before there was time for her passion to cool; and if the force used was not disproportionate to the provocation and was not intended nor likely to cause death or grievous bodily harm.
  1. [54]
    The prosecution called evidence from police officers Tamblyn, Fay, and Avery.
  1. [55]
    Officer Tamblyn gave the following evidence:

“She got out of the car.  On getting out of the car, we walked – I think, Constable Avery and myself walked her to the rear of the police vehicle, the Tully Police pod.  She had some stuff in her hands, I noticed she had a cigarette.  She put a cigarette in her mouth, was holding a lighter in her right hand.  She had a large bottle of ice coffee and, I think, a handbag or something else in her left hand.  Because she was going to be in custody, or she was in custody, I, sort of, said to Constable Avery, being a female, “Can you search her?”  To affect [sic] that search and to make sure she was safe in custody, I wasn’t going to allow her to have a cigarette or a lighter because of the obvious dangers and I said that to her but she just proceeded to try to start lighting the cigarette.  So I removed the cigarette from her mouth and grabbed the lighter.  Put that onto the ground.  And then, at that point, it happened really quickly, but at that point, I felt the liquid, the ice coffee, being poured all over me.  I think she said something, I can’t remember what.  As an instantaneous reaction to that and knowing I was being assaulted, I placed her – you know, took hold of her upper body, I think, her shoulders, performed a takedown manoeuvre, placed her on the ground and put handcuffs on.  I think Constable Avery then searched her and she was placed in the back of a police vehicle.”[14]

  1. [56]
    His body-worn camera was running the entire time and was tendered as Exhibit 2.
  1. [57]
    The appellant cross examined officer Tamblyn. Most of her questions were assertions that she was not required to comply with the laws of Queensland, and were irrelevant and objectionable.
  1. [58]
    On the issue of provocation and self defence, the appellant suggested to Officer Tamblyn that he assaulted her by slapping the cigarette out of her mouth. He rejected that proposition saying “Absolutely not. It’s for our safety. I didn’t slap it. I grabbed it and threw it on the ground.” He denied hitting her face. He said:

“So you were trying to light the cigarette with a cigarette lighter.  We’d arrested you.  You were in our custody.  So I needed to – I needed to know that I and my colleagues were safe and that you were safe.  You didn’t put down the cigarette lighter at first request, so I grabbed it and I grabbed the cigarette out of your mouth and threw it on the ground. … Yeah, but you – once you come into police custody, you cannot have a cigarette lighter on you.”[15]

  1. [59]
    Officer Fay gave evidence that he observed the incident. His evidence was consistent with Officer Tamblyn’s. His body-worn camera recorded the incident and the recording was tendered as Exhibit 3.
  1. [60]
    The appellant cross examined officer Fay. Again, most of the appellant’s questions were irrelevant and objectionable.
  1. [61]
    Officer Avery gave evidence. With respect to charges 6 and 7, she said:

“And at one point the driver has exited the vehicle and she has walked with Senior Constable Tamblyn around to the rear and left of the police vehicle.  The police vehicle was parked in front of the Tarago and I was at the time still talking to PLO Savage and I saw the driver pour flavoured chocolate milk over the top of Senior Constable Tamblyn.  I’ve gone over there to help assist him.  While I’ve gone over there, I’ve had the bottle thrown at me as well and I felt the liquid hit me as well.  I’ve helped Senior Constable Tamblyn restrain the female on the ground.  Senior Constable Fay has come over to assist us as well.  We were able to get handcuffs on the female.”[16]

  1. [62]
    The appellant cross examined officer Avery. Officer Avery said that she did not know the appellant had a cigarette on her and did not see the cigarette removed from the appellant’s mouth. She said “Did not see any of that. I have – was speaking to PLO Savage and when I’ve looked over you were pouring the chocolate milk or the iced coffee over his head.”[17]
  1. [63]
    At the appellant’s request, officer Tamblyn was recalled for further cross examination about the events leading up to the alleged unlawful assaults. This exchange occurred:

“DEFENDANT:   I’m just wondering what led up to the point of me tipping the milk over your head?So – yeah, so we – as per the video, we went through all – all through it   

Yeah?    and then just immediately before – is that what you’re asking?

Yeah?Okay.  So you were walked to the back of the police car, under arrest.  You had items in your hands, you had a cigarette in your mouth and you were attempting to try and light the cigarette with a lighter.  You wouldn’t take – you wouldn’t drop it, as I’d asked you to, so I pulled the cigarette out of your mouth, through [sic] it on the ground and put the lighter on the ground and then you started dousing or tipping the iced coffee all over me and my colleague.

I mean, do you – do you think that if somebody came up to you and grabbed something off you, that you would not retaliate?So if you’re referring to me grabbing the cigarette   

Yeah?Are you referring to that?  Okay.  No, you should not retaliate.  I’m a police officer.  I’m doing my job.  I’ve arrested you.  I’ve been patient with you for 35 minutes at roadside.  You didn’t do a thing I asked. 

So you don’t think that   ?I asked you to put the cigarette lighter down and the cigarette, for my safety and my colleagues’ safety and your safety, because you’re in our custody.  You didn’t comply with that, so I removed the cigarette from your mouth, through [sic] it on the ground and put the lighter on the ground and then you started tipping it over me.  I’ve done plenty of arrests like that before and haven’t been assaulted.  So no, you cannot assault me.  It doesn’t give you the – the right to insult a police off – assault a police officer   

That’s   ?    when they’re effecting an arrest.”[18]

  1. [64]
    The appellant gave evidence. Relevantly to charges 6 and 7, she said “I believe that I was provoked when I was taken from the vehicle and my cigarette ripped from my mouth while I – he actually hit me in the mouth as he – as he swiped it out of my mouth, which I believe he provoked me. I was only acting in self-defence.”
  1. [65]
    The appellant was not cross examined. That was not an error that would affect the verdict.
  1. [66]
    In addresses the appellant relied upon the same arguments considered above under the ground “lack of jurisdiction”. The prosecutor did not assist the Magistrate with submissions on provocation or self defence.
  1. [67]
    The learned Magistrate delivered her decision immediately.
  1. [68]
    The learned Magistrate said that in considering the most serious offences, charges 6 and 7, the body-worn camera footage of officers Tamblyn and Fay in exhibits 2 and 3 was of most assistance. She noted that that footage “goes for 35 minutes each and the court has had the opportunity to view both of those body camera footage, which, in effect, shows the incident from two separate vantage points.”[19] She also referred to each of the evidentiary certificates in exhibit 1 and the witnesses’ testimony.
  1. [69]
    The learned Magistrate found that:

“It does seem to me – and I do accept that the officers exercised considerable patience during the intercept for a period of some 35 minutes, was, as I say, a very dangerous situation, in my view, with the defendant refusing to move the vehicle off the side of the road.

It was repeatedly explained to her by Officer Tamblyn that he needed to further investigate the issues, being the unregistered vehicle and the safety issue, but she refused to, in effect, allow him to do his job to investigate the driving offences which are now, as I say, before the court, to such extent that he was required to get assistance from police in Tully and then ring the officer in charge of Cairns.  And the incident did reach the stage, after some 30 or so minutes, that Ms Reiman had had what was being – had that request made on multiple occasions, all during the period of time when Senior Constable Tamblyn was at risk of vehicles passing by him that they indicated to her that they may have to smash the window in because she refused to put the window down further, move the vehicle or step out of the vehicle.”[20]

  1. [70]
    With respect to charge 2, the learned Magistrate found that the officer was lawfully acting in the execution of his duties and that the appellant was obstructing the officer by hindering him. She found that “he was unable to conduct any of those investigations due to Ms Reiman, firstly, refusing to open the window to allow him to properly speak to her, by her behaviour which was, in my view, aggressive, argumentative and she, most significantly, refusing to move off the road, requiring him to have to stand in quite a dangerous position on the road. I note further during the discussion, she threatened to run him over and refused to move off the road to have the discussion.”[21] 
  1. [71]
    With respect to charges 3, 4 and 5, the learned Magistrate was satisfied on the basis of the evidence that those charges were proved.
  1. [72]
    With respect to charges 6 and 7, the learned Magistrate found:

“Now, then, the footage shows in the evidence of – the body camera footage shows that after Ms Reiman finally got out of the vehicle and was placed under arrest by Senior Constable Tamblyn who indicated to her that she was placed under arrest, she tossed the contents of an iced coffee bottle, poured it over Senior Constable Tamblyn and then threw the remaining amount, it would appear to me from watching the video, on Constable Avery.  She is charged with serious assault for this act on both Senior Constable Tamblyn and Constable Avery.”[22]

  1. [73]
    The learned Magistrate referred to the definition of assault in the Criminal Code. She was satisfied that the complainants were police officers.
  1. [74]
    In considering whether the police were acting in execution of their duties the learned Magistrate said:

“In the case of R v Reynhoudt (1962) 107 CLR 381, the High Court approved the following statement:

The charge was not assaulting them knowing them to be in execution of their duty, but assaulting them being in the execution of their duty.

And in R v K (1993) 118 ALR 596, it was held:

A police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not, in the course of the task, do anything outside the ambit of his duty so as to cease to be acting therein.

Which is stopping the vehicle which had no – the execution of his duty, being stopping the vehicle as it had no plates, to determine whether it was registered and the safety, and whether it was insured.”[23]

  1. [75]
    With respect to the act of officer Tamblyn removing the cigarette from the appellant’s mouth, the learned Magistrate made the following findings:

“The footage – from what I can see, I could not see a slap from the footage.  It was difficult to see that point.  I certainly didn’t see any slap or any movement of the defendant’s head that may have indicated a slap.  I did notice a smile on her face and the expression did seem to me to be inconsistent with the – any slap and more consistent with her deliberately pouring the coffee over the police officer in an act.

… in recalling Senior Constable Tamblyn he denied slapping her and simply indicated that he grabbed a cigarette and lighter from her.  And I certainly accept the evidence of Senior Constable Tamblyn in entirety and it’s consistent with the footage that he took the cigarette and the lighter from her, and in no way that then gives rise to provocation or self-defence.”[24] 

  1. [76]
    The learned Magistrate accepted in full the prosecution evidence. Although the learned Magistrate did not expressly say so, it is clear that she did not accept the appellant’s oral evidence about the incident.
  1. [77]
    In my respectful view, the learned Magistrate failed to give adequate reasons with respect to whether the prosecution had excluded provocation and self defence. She did not expressly direct herself on the terms of the relevant sections for provocation or self defence, nor did she refer to the Supreme and District Court Benchbook directions. There is nothing in the reasons of the learned Magistrate which indicates that she took the step of turning her mind to the relevant tests for these defences.
  1. [78]
    But her failure to expose her reasoning on this issue does not constitute an error of law such as would require the appeal to be allowed.
  1. [79]
    That is because, having conducted a real review of the evidence including watching the body-worn camera footage myself, I am satisfied beyond reasonable doubt that the prosecution excluded provocation and self defence, and that the appellant was guilty of the offences in questions.
  1. [80]
    Having considered all of the evidence, I am satisfied beyond reasonable doubt of the following facts. The officer had lawfully arrested the appellant. The officer and appellant were standing beside the police vehicle. The appellant put a cigarette in her mouth. The officer asked her not to light it. The appellant raised her hand holding a lighter towards the cigarette. The officer lifted his hand and brushed the cigarette out of her mouth. In my view, he did not use excessive force. In immediate response to that, the appellant threw the contents of her drink over him and another officer, who happened to be standing nearby.
  1. [81]
    I am satisfied that the excuse of provocation was negatived by the prosecution because there was no “wrongful act or insult” by the police officer. The officer’s act of removing the cigarette from the appellant’s mouth did not amount to a wrongful act or insult such as would give rise to the defence or excuse of provocation. A lawful act is not provocation to any person for an assault: s 268(3) Criminal Code. I am satisfied that the officer’s action in removing the cigarette from the appellant’s mouth was a lawful act by him in the course of a lawful arrest.
  1. [82]
    Thus the first limb of the test of provocation does not apply. It is unnecessary to consider the other limbs.
  1. [83]
    I am satisfied that provocation has been excluded by the prosecution, and the appellant’s assault was unlawful, because I am satisfied beyond reasonable doubt that the appellant was not the subject of wrongful act or insult by the police officer.

Self defence

  1. [84]
    Section 271(1) Criminal Code provides that when a person has been unlawfully assaulted and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
  1. [85]
    Where self defence fairly arises on the evidence, the burden is on the prosecution to exclude or negative it. The prosecution will negate this defence if it is able to satisfy the fact finder, beyond reasonable doubt, of any one of the following:
  1. That the defendant was not unlawfully assaulted by the complainant; or 
  1. That the defendant gave provocation to the complainant for the assault; or
  1. That the force used was more than was reasonably necessary to make effectual defence; or
  1. That the force used was either intended or was likely to cause death or grievous bodily harm.
  1. [86]
    Having considered all the evidence, I am satisfied beyond reasonable doubt that the appellant was not unlawfully assaulted by the police officer. That is, officer Tamblyn’s action in removing the cigarette from the appellant’s mouth after she refused to do so and went to light it, was not an unlawful assault. Although it was the application of force to the appellant, it was lawful because he was acting lawfully in the execution of his duties.
  1. [87]
    Therefore, I am satisfied that the prosecution has negatived or excluded self defence, and that the appellant is guilty of charges 6 and 7.
  1. [88]
    This ground of appeal fails.

Conclusion and orders

  1. [89]
    The appellant has shown no error of law or fact in respect of any of the convictions.
  1. [90]
    The appeal is dismissed.
  1. [91]
    As the respondent made no submissions with respect to seeking costs, I will make no order as to costs. I note that pursuant to s 232(4)(a) Justices Act, no order as to costs may be made on the hearing or determination of an appeal in relation to an indictable offence that was dealt with summarily. That would prohibit an award of costs in relation to at least some of the convictions under appeal in any event. 

Footnotes

[1] The appellant did not wish to be referred to by her surname. Therefore, I will refer to her as the appellant. The notice of appeal incorrectly named the arresting officer as the respondent. The Notice of Address for Service of the Respondent correctly identified the respondent as the Commissioner of Police.

[2]Allesch v Maunz (2000) 203 CLR 172, 180 [23] followed in Teelow v Commissioner of Police [2009] QCA 84 [4] per Muir J (Fraser JA & Mullins J agreeing).  See also White v Commissioner of Police [2014] QCA 121 [8] per Morrison JA (Muir JA & Atkinson J agreeing).

[3] Section 223 Justices Act 1886 (Qld).

[4]Robinson Helicopter Company Inc v McDermott & Ors (2016) 90 ALJR 679, 686-687; (2016) 331 ALR 550; [2016] HCA 22 [43]; Fox v Percy (2003) 214 CLR 118, 126 [25]; Warren v Coombes (1979) 142 CLR 531, 551; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5.

[5]Teelow v Commissioner of Police [2009] QCA 84 [3]–[4].

[6] The appellant draped said flag over the lectern at the bar table.

[7] As in Bradley v The Crown [2020] QCA 252, that paradox did not trouble the appellant.

[8] R v Stoneman [2013] QCA 209.

[9] Not unlike those referred to by the Court of Appeal in Bradley v The Queen [2021] QCA 101.

[10] Carnes v Essenberg [1999] QCA 339; Essenberg v R [2002] QCA 4; the High Court refused special leave to appeal in Essenberg v The Queen B54/1999 22 June 2000. See alsoRe Skyring (1994) 68 ALJR 618.

[11] Skyring v ANZ Banking Group Ltd [1994] QCA 143,  4.

[12] Transport Operations (Road Use Management) Act 1995 (Qld) ss 123C(1), 124.

[13] Criminal Practice Rules 1999 (Qld), rule 62(5).

[14] Transcript of Proceedings, 5 March 2021, TS 1-18, line 5.

[15] Transcript of Proceedings, 5 March 2021, TS 1-31, line 44.

[16] Transcript of Proceedings, 5 March 2021, TS 1-54, line 12.

[17] Transcript of Proceedings, 5 March 2021, TS 1-55, line 6.

[18] Transcript of Proceedings, 5 March 2021, TS 1-64, line 19.

[19] Transcript of Decision, 5 March 2021, 6.

[20] Transcript of Decision, 5 March 2021, 6.

[21] Transcript of Decision, 5 March 2021, 8.

[22] Transcript of Decision, 5 March 2021, 8.

[23] Transcript of Decision, 5 March 2021, 9.

[24] Transcript of Decision, 5 March 2021, 10.

Close

Editorial Notes

  • Published Case Name:

    Reiman v Commissioner of Police

  • Shortened Case Name:

    Reiman v Commissioner of Police

  • MNC:

    [2021] QDC 242

  • Court:

    QDC

  • Judge(s):

    Fantin DCJ

  • Date:

    30 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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