Gill v The Commissioner of Police
[2021] QDC 260
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- Gill v The Commissioner of Police[2021] QDC 260
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Gill v The Commissioner of Police[2021] QDC 260
Gill v The Commissioner of Police[2021] QDC 260
DISTRICT COURT OF QUEENSLAND
CITATION: | Gill v The Commissioner of Police [2021] QDC 260 |
PARTIES: | OLIVER KENT GILL (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO: | Appeal 84 of 2021 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 22 October 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 October 2021 |
JUDGE: | Rosengren DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – JUSTICES ACT – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of two offences against s 790 of the Police Powers and Responsibilities Act 2000 after a summary trial in the Magistrates Court – where the appellant appeals the convictions pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant raises a number of appeal points directed at establishing the existence of a miscarriage of justice – where the appellant raises complaints that the arrest was unlawful and that reasonable force was not used CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – Meaning of “as soon as is reasonably practicable” – Police Powers and Responsibilities Act 2000 s 391 Justices Act 1886 (Qld) s 222, s 223, s 225 Police Powers and Responsibilities Act 2000 (Qld) s 21, s 391, s 790 Bode v Commissioner of Police [2018] QCA 186, cited Coleman v Power and Others (2004) 209 ALR 182, cited Fox v Percy [2003] QCA 22, cited Lacey v Attorney-General of Queensland (2011) 242 CLR 573, cited R v K sub nom Director of Public Prosecutions (1993) 118 ALR 596; [1993] FCA 538, applied R v Marsden (1868) LR 1 CCR 131, cited Teelow v Commissioner of Police [2009] QCA 84, cited Walker v State of Queensland (2020) 5 QR 98; [2020] QCA 137, applied |
SOLICITORS APPEARING: | J Sibley for the appellant |
SOLICITORS: | Sibley Lawyers for the appellant |
- [1]This is an appeal under s 222 of the Justices Act 1886 (Qld) from a decision of a magistrate in the Brisbane Magistrates Court on 15 December 2020. It followed a summary hearing on 18 November 2020 for one charge of obstructing police and one charge of assaulting police pursuant to sections 790(1)(a) and (b) of the Police Powers and Responsibilities Act 2000 (Qld) (“the PPRA”).
- [2]At the hearing the witnesses who gave evidence were Constable Michael McLaughlin, Amanda Miller and the appellant. The magistrate reserved his decision and delivered it on 15 December 2020. The appellant was convicted of the offences and fined a total of $1,250 and ordered to pay $300 compensation to Constable McLaughlin. No convictions were recorded. The appellant also pleaded guilty to a drink driving charge. The magistrate imposed a $100 fine and disqualified him from driving for one month.
- [3]This appeal is against conviction only. In the Notice of Appeal filed on 12 January 2021 the following four grounds of appeal were articulated:
- (i)The magistrate erred in finding that the arrest of the defendant was lawfully executed. In particular, the magistrate misapprehended the duty in s 391 of the PPRA.
- (ii)The magistrate erred in finding that the force used was reasonably necessary in circumstances where the appellant did not offer any resistance.
- (iii)The magistrate erred in law and misconceived the evidence, such that the decision was contrary to the evidence.
- (iv)The magistrate unreasonably intruded into the adversarial area of the trial, preventing the defence from properly defending the charges.
- [4]The fourth ground of appeal was abandoned at the oral hearing on 14 October 2021. The third ground of appeal is inextricably linked with the first and second grounds of appeal. In essence it is contended by the appellant that the magistrate erred in finding that the arrest was lawful and that the force employed by police was reasonably necessary in the circumstances.
- [5]I have read the transcript of the summary hearing and have seen the exhibits, including the footage from the two body-worn cameras.
Nature of s 222 appeals
- [6]The appeal is brought under Part 9 Division 1 of the Justices Act (“the Act”). Section 222 of the Act provides that a defendant aggrieved by an order made by a justice in a summary way on a complaint for an offence, may appeal within one month after the date of the order to a District Court judge.
- [7]Section 223 of the Act provides that the appeal is by way of rehearing on the evidence given in the proceeding before the magistrate. On a rehearing, subject to the powers to admit fresh evidence, the court conducts a rehearing on the record of the hearing in the Magistrates Court to determine whether the conviction is the result of some legal, factual or discretionary error.[1] 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.[2]
- [8]
“Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”
- [9]McMurdo JA confirmed in Bode v Commissioner of Police[4], that the task of an appellate court conducting a rehearing is as described by the High Court in Robinson Helicopter Company Inc v McDermott, which is as follows:
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”[5]
- [10]Pursuant to section 225 of the Act, the appellate court can confirm, set aside or vary an order or make any other order considered just.
Summary of relevant evidence
Camera footage of the arrest
- [11]Constable McLaughlin opened the door to Ms Miller’s unit. There was light emanating from the television but otherwise it was in darkness. Constable McLaughlin shone his torch around the unit and saw the appellant several metres from him sitting on a couch in the vicinity of the television. Constable McLaughlin immediately told him that he was under arrest. The appellant had been holding a beer bottle in his right hand and he was directed to put it down and to raise his hands. The footage shows the appellant to be genuinely surprised and he asked for an explanation as to why he was under arrest. This was not provided and instead he was directed to place his hand behind his back as the police stepped in to arrest him. The appellant continued to voice his disapproval and he was told that if he moved that he would be tasered. The appellant said that he was not moving and Ms Miller stated that he had not done anything wrong. Police repeated that the defendant was under arrest and that he would be tasered if he moved. He again asked on more than one occasion the reason for his arrest and he was eventually told by Sergeant Watkins that it was for a warrant. He then asked what the warrant was for and one of the police responded “we don’t need to tell you what for right now. You’ve been told that you are under arrest.” He then asked another three times what the warrant was for before he was finally told that it was for failing to appear. He then said “I am not going to struggle. Let me up.”
Constable McLaughlin
- [12]In the early hours of the morning on 10 April 2020 Constable McLaughlin, Senior Constable McMullin and Constable Olen were responding to calls within the Fortitude Valley patrol division. They received a call at approximately 1.30am in relation to a noise complaint and a potential non-compliance with COVID-19 restrictions in relation to people in a unit on Brunswick St in New Farm.
- [13]The police parked the police van outside the complex. They immediately heard loud music. The complex comprised shops at the ground level with residential units above. Constable McLaughlin walked around the side of the complex. A roof top balcony could be seen at the rear of the complex on the top floor. It was readily apparent that the noise of the music, which he considered to be excessive, was coming from that unit. He went back around to the front of the complex and pressed the buzzer. It was either not working or could not be heard. He then walked around to the rear of the complex again. He shone a torch up at the balcony and after approximately ten minutes, a male person came out onto the balcony and spoke with him. He later identified this male person to be the appellant. Constable McLaughlin gave evidence that he attempted to speak with the appellant but he was dismissive and hostile.
- [14]There were vehicles parked in the basement of the complex. Vehicle registration checks revealed that one of the vehicles belonged to the appellant or his partner, Amanda Miller. Her profile had a mobile phone number attached to it and Constable McLaughlin telephoned it and spoke to Ms Miller. She was not as hostile as the appellant had been and Constable McLaughlin asked her to let the police into the unit. He explained to her that a warrant was not required in circumstances where police were investigating a noise complaint and compliance with COVID-19 restrictions. Constable McLaughlin also told her that the noise coming from the unit was considered to be excessive. He asked her to open the door. She did not comply although the music was turned down. The appellant again appeared on the balcony for a brief time and continued to be dismissive of the presence of the police.
- [15]Constable McLaughlin again phoned Ms Miller and explained that police were not going to leave as they were not satisfied that the noise issue had been satisfactorily addressed. He reiterated that police did not need a warrant to enter the unit. He again asked her to come and open the front door. She told him that someone would do this. Police waited for some time before the appellant again reappeared on the balcony. He remained uncooperative. At that point Constable McLaughlin activated his body-worn camera. The beginning of the footage records the end of the discussion between the two of them when Constable McLaughlin is heard to say “Come downstairs and open the door or we’ll break the door down. It’s up to you.” Shortly thereafter the appellant again disappeared from sight and went back inside the unit. Constable McLaughlin’s evidence was that he could still hear voices but there was nothing to cause him immediate concern.
- [16]The police then conducted some searches on the appellant. Constable McLaughlin saw that there was a warrant for his arrest. He said in evidence that one of the other officers ascertained that the reason for the warrant was because the appellant had not appeared in court as required. He did not look at the appellant’s history, or lack thereof. He said that he probably could have obtained a copy of the warrant but this did not usually happen when out in the field. Constable McLaughlin thought that the existence of the warrant explained why the appellant had been so uncooperative. He also knew that the presence of the warrant would make the process of entering the unit and arresting the appellant a more straightforward one as it gave the police the right of entry. He asked for a supervisor to attend and assist in the arrest of the appellant.
- [17]Constable McLaughlin then again telephoned Ms Miller and repeated his request for her to let the police into the complex. While waiting for this to occur, Sergeant Watkins arrived on scene. At one point Constable McLaughlin heard a female voice pleading “Please don’t, please don’t.” and he could hear a male shouting (this could not be heard on the camera footage). He believed the voices to be those of Ms Miller and the appellant. He said this exchange caused him some concern. He believed that something untoward was going on in the unit and that the appellant was planning to avoid being arrested.
- [18]Ms Miller came downstairs. Constable McLaughlin thought she appeared to be intoxicated. She again asked him questions about why the police wanted to enter her unit. He thought this was a delay tactic to stop police going up there. She was not told anything about the warrant. She told police that they were in unit 9. Sergeant Watkins asked her whether the appellant had any weapons and she responded that he did not. The police started to walk up the stairs and she directed them to her unit. She again asked the police why they were there and Constable McLaughlin responded “We are going into your unit. We have power of entry. And we are going to utilise it.” He again enquired whether the appellant had any weapons and Ms Miller responded “Of course not. This is a little bit over exaggeration isn’t it.”
- [19]Constable McLaughlin said that when he opened the door to the unit he was surprised to see that it was in darkness. This made him apprehensive as he thought it had been clear to Ms Miller and the appellant that thepolice would be entering the unit. He walked slowly because he could not see the whole of the unit and he was concerned that he could be attacked. He did not know how many people were in the unit nor the layout of it. He could hear a dog barking. He did not know whether this noise was coming from the dog that Ms Miller had been holding or whether there was another dog in the unit. He shone his torch in a sweeping motion around the part of the unit he could see from where he was standing and saw the appellant sitting on a couch in the corner of the lounge room with a beer bottle in his hand. He remained at the door when he told the appellant that the appellant was under arrest. He was concerned that the glass bottle could be used as a weapon so he told the appellant to put it down. He said that the appellant ignored this, as he did Constable McLaughlin’s request for him to put his hands out so that they could be handcuffed.
- [20]Constable McLaughlin explained that as soon as he saw the appellant in the darkened room holding the beer bottle it was his intention to place handcuffs on the appellant. He thought it was an “incredibly dangerous situation” particularly in the context of the appellant’s earlier hostilities towards him. In short, Constable McLaughlin considered the appellant was an immediate threat meaning that it was not reasonably practicable to explain to the appellant the reasons for the arrest. As he said in cross examination “I wasn’t prepared to stand and present myself as a target to someone with a glass bottle in their hand.” He then said that as he stepped forward the appellant raised his hand and still had the bottle in it.
Ms Miller
- [21]Ms Miller explained in evidence that she and the appellant had been enjoying some drinks after work. She estimated having consumed five or six beverages. She said that she “wasn’t intoxicated but sure, we were happy”. She went on to explain that after they were aware from police that there had been a noise complaint, they turned the music down and realising that it was the early hours of the morning, started getting ready for bed. She said that the appellant and her knew that the police were downstairs but did not consider it was necessary to go down and talk to them as they had addressed the noise complaint by turning the music off.
The appellant
- [22]The appellant gave evidence that at the time of the subject events he was not aware that there was a warrant for his arrest. He had since become aware that there was one for failing to appear in court in relation to a drink driving offence, for which his blood alcohol concentration was 0.051.[6] He had submitted an online guilty plea. He was aware that he would need to attend court but he was confused as to when this was. He had not previously been in trouble with the law and was not familiar with court processes.
- [23]Suggestions to the appellant that he had behaved aggressively towards Constable McLaughlin while he was on the balcony were repeatedly rejected by the appellant. He said that after the music had been turned off he was confused as to why the police had persisted in their requests to come up to the unit as he thought their concerns had been addressed. The appellant could recall having only one conversation with Constable McLaughlin on the balcony before the police entered the unit.
- [24]The appellant said that he and Ms Miller had decided that she would go downstairs and speak to the police as she was the owner of the unit. He said that he had not expected that the police would come up to the unit because he did not believe that they had the power to do so. He explained that when the police entered the unit he had the beer bottle in his hand but that he “didn’t see it as a weapon or anything like that.” He said that he was confused as to why the police wanted to arrest him.
Elements of the offences
- [25]Having pleaded not guilty to the two charges, the appellant was presumed to be innocent. Before the magistrate could find him guilty of either charge, the respondent needed to satisfy the magistrate that the appellant was guilty of that charge beyond reasonable doubt.
- [26]Here the appellant gave evidence. This did not mean that he assumed responsibility of proving his innocence. His evidence was to be added to the evidence called by the respondent. If the magistrate considered that his evidence should not be accepted, this of course could not lead to an automatic conclusion of guilt. Rather the magistrate needed to set it aside and consider the rest of the evidence to determine whether the respondent had proved each of the elements of the charges in question.
- [27]Turning to each of the charges, before the appellant could be found guilty of obstructing a police officer, the respondent needed to prove each of the following two elements of that offence beyond reasonable doubt:
- (i)The appellant obstructed a police officer; and
- (ii)In the performance of the officer’s duties.
- [28]Before the appellant could be found guilty of assaulting a police officer, the respondent needed to prove each of the following two elements of that offence beyond reasonable doubt:
- (i)The appellant assaulted a police officer; and
- (ii)In the performance of the officer’s duties.
- [29]Common to both offences was a requirement for the respondent to satisfy the magistrate that the offending conduct on the part of the appellant occurred while a police officer was performing their duties. For the respondent to establish this to the requisite standard, the magistrate needed to be satisfied that the task that the police were embarking on, namely the arrest, was a lawful one. If a police officer does anything outside the ambit of the officer’s duty, the officer ceases to be acting therein. In other words, if the officer exceeds their authority, any assault or resistance is not an offence pursuant to section 790 of the PPRA.[7] One of the issues on this appeal is whether the respondent discharged its onus in this regard. This is addressed below.
Was the arrest lawful
- [30]The general power for a police officer to enter a place and arrest a person named in a warrant is provided for in section 21 of the PPRA. In exercising this power, the consent of the occupier of the dwelling is not required if the police officer reasonably suspects the person to be arrested is at the dwelling.
- [31]Section 391 relates to the information to be given by a police officer to an arrested person. It relevantly provides:
- (1)A police officer who arrests a person, whether or not under a warrant, must, as soon as is reasonably practicable after the arrest, inform the person that the person is under arrest and of the nature of the offence for which the person is arrested.
- (2)A police officer who arrests a person with a warrant must inform the person that the person is under arrest and of the nature of the warrant.
- [32]The phrase “reasonably practicable” is not defined in the PPRA. It appears in other sections of the statute, including section 78(2). That section relates to the impounding or immobilisation of a motor vehicle by police for a vehicle related offence. It requires the police to give notice of either of these to the driver or owner of the motor vehicle as soon as reasonably practicable. Its meaning in this provision was considered in Walker v State of Queensland. It was held that this expression requires the police officer to act as promptly as circumstances reasonably allow. [8]
- [33]The question becomes whether the appellant was informed of the warrant and the nature of it as promptly as circumstances reasonably allowed in the context of him being arrested.
- [34]It is common ground that the officers, in particular, Constable McLaughlin did not tell the appellant that his arrest was because of an outstanding warrant for having failed to appear at court. The respondent’s argument at the trial was that it was not reasonably practicable to do so, and the same submission is made on appeal. The magistrate dealt with this matter in the following way:
“It is clear from the footage that the process of affecting the arrest was [indistinct] due to the [indistinct] being in darkness; the physical struggle, which included particulars of the assault and obstruction; a barking dog that may or may not have to have been restrained; and the defendant shouting and Ms Miller shouting. Once the arrest was affected and the noise had abated, Constable McLaughlin can be heard on footage puffing and trying to catch his breath. It is submitted that due to the chaotic environment and the [indistinct] of his defiance of the officers, it was not reasonably practicable for the officers to inform the defendant of the nature of the offence for which he was arrested until after the defendant had become compliant. Accordingly, the officers did inform the defendant as soon as was reasonably practicable after the arrest of the nature of the offence for which he was arrested and the nature of the warrant.
In the alternative, police submit that if it were appropriate, that section 255 sub (1) of the Criminal Code does apply to the police officers arresting persons under a warrant, it is submitted by police that it was not reasonably practicable, as contemplated by section 255 sub (1) for Constable McLaughlin to have the warrant with him as he attended the address without knowing that the defendant would be there and even if the court is of the view that it was reasonably practicable for Constable McLaughlin to carry and produce the warrant, subsection (3) applies with the effect that Constable McLaughlin’s failure to carry and produce the warrant does not of itself made the arrest unlawful. I will accept that submission in relation to lawfulness of the arrest, it is submitted that the arrest of the defendant was lawful on the basis that there was a power to enter the unit and arrest the defendant under section 21 of the Police Powers and Responsibilities Act.
The use of force employed when affecting the arrest was no more than what was reasonably necessary in accordance with section 615 of the Police Powers and Responsibilities and police complied with their duties after arrest as set out in section 391 of the Police Powers and Responsibilities Act, or in the alternative, they complied with section 255 of the Criminal Code and depending on compliance, did not render the arrest unlawful.”
- [35]I do not agree with the rationalisation applied in this case. In arriving at this conclusion, I am cognisant that the magistrate had the advantage of seeing and hearing the witnesses. However, the footage from the body-worn cameras which I have seen, shows the arrest and the 12 or so minutes leading up to it.
- [36]Although section 391 does not require a police officer to tell a person that there is warrant for their arrest and the nature of it before telling a person that they are under arrest, in the circumstances of this case, that could have easily been done. It could also have been done after Constable McLaughlin told the appellant that he was under arrest but before Constable McLaughlin stepped in to physically restrain the appellant. On either occasion it would have taken a few seconds and would have put the appellant on notice that to obstruct would be an offence. The reasons for this are set out below.
- [37]Police had originally attended the premises in response to a noise complaint which was addressed by Ms Miller and the appellant. It was after the music had been turned off that police conducted a search in relation to the appellant and identified that there was an outstanding warrant for his arrest. After Ms Miller had gone downstairs to speak with police, she requested on two occasions an explanation from police as to why they were demanding access to her unit. On the first occasion no response was given and on the second occasion, Constable McLaughlin told her in a forthright way that the police had the power to enter the unit and that they were going to use it. Constable McLaughlin’s evidence that he thought Ms Miller was asking the questions as a delay tactic to prevent the police going into the unit is not supported by the camera footage. To the contrary, she appeared to be genuinely surprised by the situation and was seeking to clarify with the police their reasons for wanting to enter her unit.
- [38]I do not accept Constable McLaughlin’s evidence that he was faced with an incredibly dangerous situation when he entered the unit. He said that one of the contributing factors to his concerns in this regard was his previous interactions with the appellant while the appellant had been on the balcony. However, the most recent of these interactions had been more than 10 minutes before the police entered the unit. The hostility that Constable McLaughlin was referring to was limited to the appellant declining Constable McLaughlin’s request to give the police access to the complex and in doing so telling Constable McLaughlin and the other officers to go away. Whilst this could have perhaps been expressed in a more polite way, it was understandable to some extent once the music had been turned off. It ought to be observed that Constable McLaughlin did not help to calm the situation. He was captured on the footage at the end of the conversation telling the appellant in a somewhat aggressive manner that the police would break the door down if they were not let into the complex. The appellant did not respond to this.
- [39]Then, in the minutes before police entered the unit, Ms Miller had reassured the officers that the appellant was not carrying any weapon. I do not accept Constable McLaughlin’s description of the unit having been in complete darkness. As I have already set out, the footage shows that the loungeroom of the unit was partly illuminated by the light emanating from the television. The appellant was quickly identified. He was sitting on a couch opposite the television and it was positioned towards the centre of the loungeroom. There was nothing threatening about his demeanour at this point.
- [40]Constable McLaughlin reiterated in his evidence on several occasions that one of the other factors contributing to the dangerousness of the situation when he confronted the appellant in the unit was that the appellant was holding the beer bottle. It is true that this, along with many other objects, have the potential to be used as a weapon. However, in my view Constable McLaughlin’s reliance on his concerns in this regard as a reason for not telling the appellant why he was being arrested, is not supported by the footage. It shows that when Constable McLaughlin entered the unit and announced that the police had arrived, he was several metres from the appellant, who was sitting on the couch with his legs resting on an ottoman. The bottle of beer was held in a non-threatening way in the appellant’s right hand which was resting on his legs in front of him. When Constable McLaughlin approached the appellant while telling him that he was under arrest, he remained seated, and his arms did not move. He was asking Constable McLaughlin the reason why he was being arrested. By this time Constable McLaughlin was still approximately two metres from the appellant. It is unfortunate that Constable McLaughlin chose to immediately step in and take hold of the appellant before first responding to his question as to the reason for his arrest.
- [41]Therefore, I am satisfied the footage shows that before Constable McLaughlin commenced restraining the appellant there were reasonable opportunities for him to have told the appellant why he was being arrested and those opportunities were not taken. It was only after Constable McLaughlin had stepped in that the appellant resisted the attempts that were being made to arrest him. In my view, the appellant’s conduct which followed was in response to being arrested when an explanation had not been provided to him as to the reason for the arrest.
- [42]For these reasons, I am satisfied there was a breach of section 391. The legislative requirement to inform a person of the reason for an arrest as soon as is reasonably practicable, if not followed, undermines a police officer’s assertion of acting in the performance of duties. The charges, under section 790 of the PPRA, are of obstructing Constable McLaughlin in the performance of his duties, and assaulting Constable McLaughlin in the performance of his duties and I am not satisfied that the respondent proved beyond reasonable doubt the second element of either of these charges. Thus, I am persuaded that the appellant has demonstrated error on the part of the magistrate.
- [43]Given these findings, it is not necessary to deal with the remaining ground of appeal, namely that the force used to arrest the appellant was not reasonably necessary.
Conclusion
- [44]It is ordered that:
- (i)The appeal is allowed.
- (ii)The convictions for obstructing a police officer and assaulting a police officer are set aside.
- (iii)The order for compensation is set aside.
- (iv)Verdicts of acquittal are entered in place.
Footnotes
[1] Lacey v Attorney-General of Queensland (2011) 242 CLR 573.
[2] Teelow v Commissioner of Police [2009] QCA 84, [3]–[4].
[3] [2003] HCA 22.
[4] [2018] QCA 186.
[5] (2016) 90 ALJR 679, 686–687.
[6] This is the offence to which the appellant pleaded guilty and was sentenced by the magistrate.
[7] R v K sub nom Director of Public Prosecutions [1993] FCA 538; R v Marsden (1868) LR 1 CCR 131; R v Coleman v Power and Others (2004) 209 ALR 182 at 212.
[8] (2020) 5 QR 98 at 109.