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May v Commissioner of Police[2021] QDC 275

May v Commissioner of Police[2021] QDC 275

DISTRICT COURT OF QUEENSLAND

CITATION:

May v Commissioner of Police [2021] QDC 275

PARTIES:

MAY

(applicant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

985/2020

DIVISION:

Criminal

PROCEEDING:

Appeal pursuant to s 222 of Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrate’s Court

DELIVERED ON:

15 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2021

JUDGE:

Burnett AM DCJ

ORDER:

  1. 1.Appeal for adjournment refused.
  2. 2.Leave to extend time refused.
  3. 3.Appeal is dismissed.

CATCHWORDS:

MAGISTRATES – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant pleaded not guilty to assaulting or obstructing a police officer – where the defendant was found guilty by the Magistrate after trial – whether extension of time should be granted for leave to appeal the decision – whether the Magistrate erred in finding she could not review the decision of another Magistrate – whether the Magistrate erred in finding the level of force used by the officer was excessive in the circumstances

LEGISLATION

Justices Act 1886 (Qld) s 40, 42, 222, 223, 224

Penalties and Sentences Act 1992 (Qld) s 19

Police Powers and Responsibilities Act 2000 (Qld) s 615(1), 790(1)(b), 796(2)

CASES

Forrest v Commissioner of Police [2017] QCA 132

Frost v Commissioner of Police [2014] QDC 294

COUNSEL:

N May (self-represented applicant)

C Thompson for the respondent

SOLICITORS:

Commissioner of Police for the respondent

  1. [1]
    This is an appeal against conviction. It has a lengthy and turgid history. I will detail the relevant parts as are necessary to address all aspects of the appeal. On the 12th of October 2017, the appellant was before the Magistrates Court in Mareeba, together with her husband, in relation to a charge of stealing.  The matter was listed that day for summary trial.  They were each self-represented.  The path to that Court itself had not been easy.  The alleged offences occurred in September of 2016.  It related to the alleged theft of whitegoods by them from their employer.  There have been numerous mentions before the trial date was set for 12 October 2017.
  1. [2]
    At the outset of the trial, the Police Prosecutor sought to amend the particulars of the ownership of the goods. The Police Prosecutor sought to particularise the owner as a corporation, not as an individual as had previously been informed. The corporation was an entity associated with the relevant individual. The appellant opposed the application. At the time, no valid reason was advanced to oppose the Police Prosecutor’s application to that effect, but in the event, matters escalated. The appellant was not ready for trial. She wanted to call witnesses from Europe of whom I note none appear to have been relevant. She had a surly tone in her voice, and she spoke over the magistrate, and her attitude sounded discourteous.
  1. [3]
    During the course of the hearing, the appellant addressed the Court in a manner which was not only discourteous, but also ultimately disruptive of the proceedings. This appears to have occurred on numerous occasions. There were instances which I will detail shortly when I come to address the merits of the appeal. Ultimately, the magistrate ordered the appellant be detained pursuant to section 40 of the Justices Act 1866 (Qld).  Police Officer Mitchell, the Police Prosecutor, was present and sought to detain the appellant and effected arrest consistent with the magistrate’s order.  He indicated to the appellant that she was under arrest for contempt.  The appellant resisted the arrest and otherwise obstructed police in the course of effecting that arrest. I note by this time another police officer had become involved in assisting Officer Mitchell in his initial attempts at arrest.
  1. [4]
    The proceedings were then adjourned. At a later proceeding, the appellant apologised to the magistrate, and he determined not to take action pursuant to section 40 and discharged her in respect of that matter. That brought the contempt proceeding to a conclusion.
  1. [5]
    However, in the meantime, police had charged the appellant with an offence related to her conduct following their attempts to arrest her after the magistrate had ordered she be arrested. The appellant was summonsed to appear at the Mareeba Magistrates Court. She first appeared in respect of that charge of obstruction on the 8th of November 2017.  Between 8 November 2017 and 8 August 2019, there are approximately 19 mentions of the matter variously because the magistrates involved either recused themselves or were objected to, there were changes of venue, there was dismissal and reengagement of legal representation acting for the appellant, and there were various witness issues.
  1. [6]
    On the 8th of August 2019, the matter came on for hearing in Brisbane before Magistrate Payne.  The trial proceeded over two days.  The appellant was represented at that trial by a solicitor.  Judgment was ultimately delivered on the 11th of February 2020, and following a finding against her, she was sentenced to be wholly discharged with no conviction recorded.  The Court records note that pursuant to section 19 of the Penalties and Sentences Act 1992 (Qld), she would be discharged absolutely, and a conviction not recorded.  The file notes her solicitor appeared on the delivery of oral reasons and sentence.
  1. [7]
    The appellant filed her notice of appeal on the 27th of March 2020.  Although no application was initially made for an extension of time, one now is, and that is the first matter that arises concerning the appeal itself, namely, the question of whether leave to appeal ought to be given to an appeal filed out of time, that is, after one month following the date of the order.  Given the order was made on the 11th of February, the appeal was filed approximately 16 days or just two weeks out of time.  She did, however, in the interim seek to file a notice of appeal after the close of business on the 28th day.  The registry responded informing her that is, in effect, the next business day, which still put her out of time.  In any event, the registry responded informing her that it could not accept a notice of appeal by email and informed her of the appropriate process for filing her notice of appeal.
  1. [8]
    The Court has power to enlarge the time for appeals. See section 224(1)(a) of the Justices Act 1866 (Qld).  I will address the matter more specifically shortly.  However, despite the relatively brief extension required, for the reasons which follow concerning her prospects, I will ultimately refuse leave to extend time to appeal.  An additional complication arises here because the appellant also seeks the adjournment of the hearing of this appeal.
  1. [9]
    This appeal has also progressed slowly. Submissions were exchanged well after 12 months following the delivery of the notice of appeal, and the parties were advised by the District Court appeals registrar on the 15th of July 2021 of the need to file a certificate of readiness by the 27th of July 2021.  The appellant executed and emailed her certificate of readiness on the 26th of July 2021.  It is noteworthy that the appellant was and had been in Fiji some time preceding the date of commencement of the appeal.  I note that the last hearing date upon which she attended was in August of 2020.  Plainly she left the jurisdiction sometime between that date and the date of delivery of decision. Her leaving the jurisdiction is unsurprising as she is not an Australian citizen.
  1. [10]
    On the 27th of July 2021, the parties were informed by the civil lists manager that she would be in contact concerning a hearing date.  On the 28th of July, the registrar wrote advising of a number of dates which would be available for the hearing of the appeal.  On the 29th of July, the appellant responded, complaining that she was self-represented, and it was unfair that the respondent had legal representation and advised that she would write the next day concerning her availability.  She did not. Next, the registrar wrote again on the 9th of August, noting available dates for the hearing of the appeal.  The following day, that is, 10 August, the appellant wrote again complaining of disadvantage as a self-litigant, asserting her entitlements under the Human Rights Act 2019, stating:

Please take into consideration, that I am not a native speaker,  English is not my mother tongue and the legal terminology used in front of Court makes it very hard for me to follow the proceedings.  I am still stuck in Fiji due to the COVID-19 pandemic and the closed borders which is why I won’t be able to attend the upcoming hearing in person and I will have to attend the hearing via telephone conference, which makes it even more difficult for me to fully comprehend what is being said and to follow up with the proceedings.

I am a German citizen and in Germany it is a matter of course that if one party in front of  Court is represented by a solicitor that the other party also has the right to legal representation in order to grant fairness and equality in front of Court.  If one party can not afford to pay for their own legal representation, the relevant Court directly issues a Legal Aid certificate even in civil Court proceedings to ensure fairness and equity. 

Hence, I do not understand how my abovementioned human rights shall be protected in this matter, if the other party is legally represented but I on the other hand can not afford legal representation in this case in order to properly defend my case.

  1. [11]
    I make two observations concerning those remarks. First, the appellant is not without some deal of intellectual ability. I note the statements made by her husband in the proceedings below concerning her level of education and multilingual capacity. While it is correct that she is not a native English speaker, it is evident from both the transcript of the proceedings below, her level of comprehension and her English expression contained in this and other pieces of written material placed before the Court that she has what could be best described as a very comprehensive grasp of the English language.
  1. [12]
    By reason of those matters, she said she could not agree with a date. On 10 August, the registrar again wrote to the appellant, requesting the appellant nominate a date. Later that day, the appellant wrote in these terms:

Currently, I will be available in October, either date 5th to 8th is suitable.

  1. [13]
    The respondent indicated its availability on 8 October. On 11 August 2021, the registrar wrote to all parties advising the appeal was set down for 8 October 2021. A formal notice of hearing advising the set down date of hearing and consequence of nonappearance dated 11 August 2021 was then sent to the parties by the registrar. The next contact with the appellant was by an email sent on 27 September. In part, it stated:

Good afternoon,

I hereby want to apply for an adjournment of the case BD985/20 – May v Queensland Police Service.

The next hearing date is set down to be on the 8th of October 2021. 

I hereby kindly ask your Honor if you could set down a new hearing date for the end of January in 2022.  

Please find in the following the reasons for my adjournment request: 

  1. (1)I won’t have access to a reliable telephone or internet connection due to the fact that I am travelling on a sailing yacht between Fiji and Europe at the moment, trying to find my way back into my home country, Germany.
  2. (2)It is not possible to guarantee to be anywhere on the mainland during my journey at a certain date and time because of unpredictable developments throughout the COVID pandemic and with that possible lockdowns, closed borders or extended quarantine times.
  3. (3)It is planned to reach Europe by the end of December 2021.
  4. (4)To assure my availability I hereby ask for a date to be set down at the end of January 2022 or later.
  1. [14]
    I note that, again, from the trial below, the appellant came to Australia in about 2012.
  1. [15]
    By email of 30 September 2021, the respondent indicated it opposed the application for adjournment. The appellant wrote again to the registrar on 1 October stating in part:

As mentioned in my adjournment application I most likely won’t be able to attend the hearing for the reasons given, consequently the matter is not resolved and can’t proceed on 8 October 2021 as scheduled.

  1. [16]
    On 5 October, the appellant again wrote requesting an adjournment. From her correspondence, it was apparent that she was then on a boat. She stated:

…we are offshore and won’t reach land again for a further 12 to 14 days…

  1. [17]
    She was informed the matter remained listed and she had leave to appear at the hearing by phone. On the day set for hearing, she was sent an email advising of the Chorus Call details. Ultimately, at the hearing, there was no appearance by the appellant. The respondent opposed the adjournment and maintained its resistance to the appeal. Relevant material was read, and at the conclusion of the hearing, a formal order was made by me reserving my decision.
  1. [18]
    My ultimate decisions are that the application for the adjournment be refused, leave to extend time to the appeal is refused, and the appeal is dismissed. These orders arise following a consideration of discretionary factors, the principal of which concerns the appellant’s prospects of success on the appeal. For the reasons which follow, I assess them as poor.
  1. [19]
    Concerning the application for the adjournment, not only do I assess the appellant’s prospects of appeal to be poor, but after the dates were set to suit the appellant, in my view, it ill behoves her to seek to force the Court’s hand to suit her convenience in the circumstances. Her submissions on this point may have been more persuasive had she made an application before embarking upon her travels. However, given she has already delivered to the Court a comprehensive 17-page outline to be considered, the contention that she will not be heard rings hollow. I expect the fact that she had filed that outline informed her choice to sail without earlier applying for an adjournment of the appeal proceedings.
  1. [20]
    The community, too, has an interest in seeing these proceedings brought to a conclusion. These proceedings have a long and convoluted history. Each stage is resplendent with delay. At some point, it must be accepted that sufficient latitude has been granted and matters must be brought to a conclusion. That is especially so in circumstances where there has been the provision of comprehensive submissions to which it is respectfully my view that the appellant’s appearance in person can add little, if anything, to the matters already articulated.
  1. [21]
    Prior to the appeal, I had read and reviewed all of the material except for the audio recording of the proceedings below. If I felt there was something further of substance that could have been added to the matters submitted by the appellant, again, I may have formed a different view. However, that is not my view. Indeed, listening to the audio only serves to reinforce the impressions gained already from my review of the transcript, in particular of the events of the day in question. In my view, an adjournment here would only serve to delay the inevitable.
  1. [22]
    Finally, in disposing of the application for leave to extend time to appeal, while it is correct that only a short period of extension is required, I do not think such an application ought to be entertained. First, no reasonable basis or excuse has been proffered for the delay, and second, again, the merits of the appeal here, in my view, are so poor as not to warrant an extension of time.
  1. [23]
    Turning then to the appeal itself and matters concerning its prospects. The ground of appeal expressed was “Her Honour erred in finding as a matter of law that she could not review the decision of the acting Magistrate. Her Honour erred in finding that the level of force was not excessive, which is not the test in relation to use of force.”[1]
  1. [24]
    I commence upon the premise that as an appeal, pursuant to the Justices Act 1866 (Qld), it is an appeal by way of a hearing on the evidence in the proceedings before the justice.  The approach is that provided for in Forrest v Commissioner of Police [2017] QCA 132.  There, it was stated:

It has been said many times that such an appeal by way of rehearing requires an appellate Court to decide the case for itself.  Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a Court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law.  Nor is there an onus upon an appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal.[2]

  1. [25]
    The president continued a little further:

Yet an appellate Court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.  That has been established by numerous cases … the… judge had to consider each of the grounds of appeal raised by the applicant and, having regard to the evidence led in the Magistrates Court and paying due regard to the advantage that the learned magistrate had in seeing the witnesses give evidence, determine for himself the facts of the case and the legal consequences that follow from such findings of fact.

  1. [26]
    On the occasion the matter came on for hearing, the evidence reveals the following. Officer Mitchell, who was the Police Prosecutor, was appearing in a stealing hearing involving the appellant and her husband. The appellant had been interrupting the magistrate in the course of the proceeding and it was ultimately directed that she be taken into custody. The officer stated that he considered the magistrate was enlivening section 42 of the Justices Act 1866 (Qld).  Plainly, in that regard, he was in error and no doubt intended to refer to section 40.
  1. [27]
    In any event, acting upon that belief, he formed the view that the magistrate was ordering the appellant be excluded from the Court for wilfully misbehaving or interrupting. At that time, he said the appellant was seated at the bar table. He walked over to her and told her she was under arrest for contempt of Court. He said the appellant was pinning her arms down and hunkering forward in her chair, that is, bracing and holding her position firm. He placed his hand on her right upper arm and with his other hand motioned towards the rear exit. That constitutes the arrest. He said the appellant continued to resist physically and by elevating her voice. Her hysterical response is plainly evident in the recording. He said that he told the appellant to go with him, and she said she was not going anywhere with him.
  1. [28]
    He said he tried to pull her out of her chair, and he put her arm around her back to gain some control of her. He noted that she continued resisting and thrusting her body forward. He said she got to her feet and turned around so that she was facing him, and he lost control of her arm. He said he tried to grab hold of the other arm, but she was pulling her arms away from him. At this point, he says the appellant thrust her head backwards, striking her head on the wall and began screaming hysterically. At about this time, Officer Jarvey entered the Courtroom, and they both sought to settle the appellant down. They tried to get her to her feet, but she continued screaming hysterically, and they gave her numerous verbal instructions, which she ignored. Ultimately, the appellant was handcuffed and removed from the Courtroom.
  1. [29]
    Ms Michelle Curley, who was the Court clerk in the Court at the time, she said that the appellant kept talking over the top of everyone, and then she heard the magistrate say, “Right. Take her into custody.” She said the magistrate told the appellant to sit down several times, but she did not. She said the appellant did eventually sit down and then placed her hands in front of her seat and was, in effect, pulling herself or holding herself down. She noted that her body was tense and leaning forward. She said that after Officer Mitchell told the appellant that she was under arrest, she noted that he placed his hand on her right arm.
  1. [30]
    At this point, she said the appellant complained, “You’re hurting me. You’re hurting me.” She said Officer Mitchell told the appellant she needed to go with him and that he was asking her to stand up and trying to direct her to stand up with his hand on her arm but that he saw she was continually resisting by pushing or pulling away. She said Officer Mitchell stood the appellant up and she was still trying to pull away, and they went to the ground. He stood her up, holding her arm, and at this point, the appellant was shrieking, calling out, “Help me. Help me.” Ms Curley tried to assist, and ultimately the appellant was taken from the Courtroom.
  1. [31]
    Constable Jarvey was also involved in these matters. He was a witness due to give evidence in the stealing hearing, and he was waiting outside the Courtroom at the time these events unfolded. He was alerted to the screaming of a female voice and went into the Courtroom to see if everything was okay. When he entered the Courtroom, he saw the appellant on her knees, with Officer Mitchell standing next to her. He noted Mitchell had her by the arm. He approached them and found the appellant was not complying with Officer Mitchell’s requests to put her hands behind her back.
  1. [32]
    He grabbed the appellant with the other arm, that is, her left arm, and directed her to place her hands behind her back but noted that she continued screaming and did not comply. He observed the Court clerk, Ms Curley, was also there, trying to comfort and pacify the appellant. He noted the appellant kept screaming and saying, “You’re hurting me.” He noted that when he and Mitchell tried to get the appellant to her feet, she continued to resist and be a deadweight on her knees. Eventually, they were able to get her up by handcuffs and she was removed from the Courtroom.
  1. [33]
    Finally, there was the evidence of the appellant’s husband, Mr May. He was her co-accused on the stealing charge which was to proceed that day. He stated in his evidence that he did not feel the proceedings that day were fair to he and the appellant and that they could not explain their problems with the process and that there were plainly some issues evident from the tape about terms used which explanations were requested of the magistrate. He said after the magistrate had said, “Take the defendant into custody,” Mitchell ran past him very quickly and grabbed the appellant on the arm. He said her arm was at a 90-degree angle, and he and the appellant were then standing up. He said Mitchell used the appellant’s arm like a lever and pulled her out between the chair and table and pushed her to her knees, causing her to hit her head on the wall.
  1. [34]
    While this was all going on, of course, the tapes were running. A transcript of what was being said was recorded. Relevantly are these parts. Prior to the magistrate’s direction to the police, it continued in these terms for a short time:

BENCH:   Sit down.

DEFENDENT:   All right then.  This is an unfair trial.  I’ve been screamed at by Mr Heggie.

BENCH:   This is – no, Listen, madam.  Listen.  Listen to me now.  This is my Court, not yours.  You will follow my instructions.  If I wish to ask you something and clarify it is important that I do so.

DEFENDENT:   I want to finish my submissions.  It is important as well.

BENCH:   You’ll have your opportunity later to make submissions to me if I  decide the matter proceeds today.   You are merely complicating the process by persisting and speaking over me when I try to speak to you.

DEFENDENT:   Not correct.  I have been interrupted by the Magistrate Heggie many times now.  I did not have a fair chance to present –

BENCH:   All right.  Take the defendant into custody.  When she’s prepared to comply with my requirements   

CONSTABLE MITCHELL:   You’re under arrest.

DEFENDENT:   Why?  No.  For what?  This is unfair.  The judge is biased.

  1. [35]
    Ultimately, having considered all of the evidence, the magistrate concluded that in respect of the factual issues and the evidence, each of the witnesses gave evidence as honestly as they could remember it. She noted that the event was dynamic, and the witnesses did their best to recall what happened and when. She distilled the issues at the hearing in these terms:

Mr Sibley, Mrs May’s lawyer in the proceedings before me, did not submit that (the appellant) did not obstruct the police officer but his submissions included the police officer used excessive force and was therefore not acting in the performance of his duties.  To consider the issue of force there are two factual issues for me to consider: 

  1. (1)was Mrs May seated at the bar table at any time during her detention with Senior Constable Mitchell; 
  2. (2)how did Mrs May strike her head?
  1. [36]
    Ultimately, so far as factual findings were concerned, she found as a matter of fact that at or about the time that Senior Constable Mitchell approached the appellant and said to her, “You’re under arrest,” the appellant seated herself and used both hands to clench her seat. She also concluded that the appellant did not describe the police officer as acting aggressively and that Constable Mitchell and Ms Curley have both described the incident as the appellant struggling and offering physical resistance against going with Constable Mitchell. She made the finding that the appellant hit her head during the struggle with Constable Mitchell and that it was a consequence of the resistance she offered to the police officer attempting to detain her and not as a consequence of force applied by him. Having made those findings of fact, she then addressed the charge of obstruction provided for by Police Powers and Responsibilities Act 2000 (Qld) section 790(1)(b).  She identified the test as stated by McGill DCJ in Frost v Commissioner of Police [2014] QDC 294, namely:

In circumstances where a police officer is lawfully arresting a person, to resist arrest in a way which makes it more difficult for the police officer to perform the officer’s duties amounts to obstruction.[3]

  1. [37]
    She noted the magistrate’s powers provided for by section 40 of the Justices Act. Relevantly, they provide, penalty for insulting or interrupting justices:
  1. (1)A person who …
  1. (c)wilfully interrupts the proceedings of such a Court or examination …

may by oral order of such Court or justice, be excluded from such Court or examination and, whether the person is so excluded or not, may be summarily convicted by such Court or justice of contempt.

  1. (3)A person referred to in subsection (1) …
  1. (b)may be taken into custody by a police officer on order of such Court or justice and without further warrant
  1. [38]
    Officer Mitchell acted in accordance with the instructions issued by the magistrate, which instructions had been preceded by the unpleasantness detailed earlier. Putting aside the issue of whether the conduct in law constituted a contempt - it plainly had that flavour - the police officer acted upon the order of the magistrate consequent upon that conduct. The ground of appeal was that the decision was unlawful and therefore the police officer could not lawfully have exercised the power of arrest. An adjunct to that argument was the submission that the magistrate erred in finding that she could not review the lawfulness of that decision.
  1. [39]
    Dealing first with the matter of review. Section 40 provides for a summary process, that is, without the making of a formal complaint for disposition of contempt in the face of the Court. On that basis, no right of review of the decision exists under section 222 of the Justices Act 1866 (Qld), which limits appeals to persons aggrieved “by an order made by justices … in a summary way on a complaint for an offence”.
  1. [40]
    However, review is available by other means. The magistrate referred to the prospect of judicial review, that is, application to the Supreme Court for review of the determination by the magistrate under section 40. Importantly, no right of review exists to another magistrate. The submissions made by the appellant on this point are misconceived and concern matters relevant to administration only. They do not permit referral to another magistrate of the orders or rulings by another magistrate. In this case, no appropriate review has been sought by the appellant of the magistrate’s ruling and exercise of powers pursuant to section 40.
  1. [41]
    The matter came back before the magistrate for disposition in respect of that matter. Ultimately, an apology was proffered by the appellant and accepted by the magistrate. In consequence of that, she was discharged in respect of that offence, and that brought that particular proceeding to a conclusion. In any event, I do not consider the order made by the magistrate to have been unlawful. Ultimately, he had before him evidence of interruption. Undoubtedly, he gave the appellant no warning of his intention to exercise his powers under section 40. Strictly, he was under no duty to do so, although in the circumstances that may have proven to have been a more prudent course. The so-called anomalies referred to by the magistrate below did not relieve the presiding magistrate of the right to exercise the power or render the exercise of that power unlawful once the appellant had become interruptive, as she plainly was.
  1. [42]
    I do not consider the appellant’s arguments on this point meritorious. In my view, the exercise of the power to arrest under section 796 of the Police Powers and Responsibilities Act 2000 (Qld) was lawful.
  1. [43]
    But even if I were wrong in respect of my view of the facts, section 796(2) provides for the exercise of the power of arrest in two situations. Section 796 is expressed in these terms:

Section 796, helping Courts, etc.

  1. (1)This section applies if, under another Act or law, a tribunal has power -
  1. (c)to give any other order or direction for which the help of a police officer may be reasonably necessary.
  1. (2)It is the duty of a police officer to comply with any lawful direction, request, or order of the tribunal any reasonable request the judge or other presiding officer may lawfully make.
  1. [44]
    The first part of section 796(2) depends upon the “lawfulness” of the direction. However, the second part of the provision, that is, the part joined by the conjunctive “and” provides for the exercise of the power upon “any reasonable request the judge … may lawfully make”. It is a trite proposition that a judge or judicial officer might have the power to order the arrest of a person committing a contempt in the face of a Court. The real question is whether the request is reasonable. Here I think it was by way of illustration here, if the request had been made at the conclusion of the proceedings that day, that is, after the events had passed and all had settled down, the question of reasonableness of the request might then have been in doubt.
  1. [45]
    Accordingly, if an arrest had been affected in those circumstances and for other reasons the order was unlawful, for instance, because the conduct did not constitute an offence under section 40(1), the police officer would not be acting in accordance with section 796. I make that observation for completeness. In any event, I am satisfied the magistrate gave a lawful direction. But as I say, even if he did not, the circumstances gave rise to the prospect of a direction that he “may lawfully” make, and accordingly section 796 was satisfied.
  1. [46]
    The next ground is that the magistrate erred in finding the level of force was not excessive. Section 615(1) of the Police Powers and Responsibilities Act 2000 Qld) provides that it is lawful for a police officer exercising or attempting to exercise a power under the Act against an individual to use reasonably necessary force to exercise the power.  The evidence of Constable Mitchell was of the escalation of force by him in response to the appellant’s escalation of resistance.  His initial force constituted a touching to signify the arrest.  It was, of course, accompanied by a statement that he was placing her under arrest.  It was met with an immediate response of resistance by the appellant.  The appellant braced herself.  She refused to be moved from her seat.  Her resistance was such that once officers came and others came to Mitchell’s aid, matters continued to escalate.
  1. [47]
    Everything that followed upon the immediate act of arrest escalated in response to the level of resistance being offered by the appellant. I am satisfied from the evidence that the level of force applied in the arrest was reasonable and appropriate. It was not excessive. I do not think the magistrate’s findings on this can be successfully challenged. I certainly share her findings. Upon that basis, the appellant’s contentions that the actions of Mitchell were unlawful will fail.
  1. [48]
    Finally, self-defence is advanced on behalf of the appellant. I note that this was not raised in the trial below. However, the force used by Mitchell was both reasonable and proportionate to give effect to the arrest, and no issue of self-defence arises as the arrest itself was lawful. In my view, this ground will also fail.
  1. [49]
    Finally, in her outline, the appellant raises a number of other matters which I will touch upon for completeness. At paragraph 41, she makes reference to the case being listed several times in front of different magistrates and to the issue of ruling over an order or evaluating the lawfulness of an order made by an acting magistrate was never seen as an issue. She contends the issue was never raised, and so her right for due process of law under the Australian Constitution was violated. I do not understand the contention, but I do not think there is anything in it.
  1. [50]
    Secondly, at paragraph 42, she says also because of the right to security of the person and freedom from arbitrary detention as it is explained by the Australian Government on their homepage should be considered in this case as there are reasonable doubts to be raised that Mrs May was experiencing a fair process as explained above. Again, I do not quite understand the point being made, but in any event, if it is in relation to the question of reasonableness of force, it has been addressed in the reasons concerning this appeal.
  1. [51]
    Ultimately, I do not think that the appeal has any reasonable prospects. It is, in my view, in the interests of justice for both the appellant, who plainly struggles with the judicial process, and the community which funds it, that this matter be brought to a conclusion.
  1. [52]
    Accordingly, I order that the application for the adjournment be refused, leave to appeal be refused and that the appeal be dismissed.

Footnotes

[1] Notice of Appeal, court document 1.

[2] At page 4.

[3] At [7].

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Editorial Notes

  • Published Case Name:

    May v Commissioner of Police

  • Shortened Case Name:

    May v Commissioner of Police

  • MNC:

    [2021] QDC 275

  • Court:

    QDC

  • Judge(s):

    Burnett AM DCJ

  • Date:

    15 Oct 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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