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Woolla v Commissioner of Police[2021] QDC 284

Woolla v Commissioner of Police[2021] QDC 284

DISTRICT COURT OF QUEENSLAND

CITATION:

Woolla v Commissioner of Police [2021] QDC 284

PARTIES:

AELAN HENRY WOOLLA

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

63 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Weipa

DELIVERED ON:

19 November 2021

DELIVERED AT:

Cairns

HEARING DATE:

27 September 2021

JUDGE:

Fantin DCJ

ORDER:

  1. 1.Allow the appeal. 
  2. 2.Set aside the verdict of guilty and forfeiture order.
  3. 3.Enter a verdict of not guilty and discharge the defendant.
  4. 4.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 attempting to take liquor into a restricted area – where the appellant appeals the conviction on the ground that the verdict was not supported by the evidence – meaning of “attempt” in s 168C of the Liquor Act 1992 – whether the acts were sufficient to constitute an attempt to enter restricted area or were merely preparatory

Legislation

Criminal Code 1899 (Qld), s 4, s 535(1)

Justices Act 1886 (Qld) s 222

Liquor Act 1992 (Qld) s 3(e), s 168B, s 168C, s 173F, s 173G

Liquor Regulation 2002 (Qld) Sch 1A

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 (2016) 90 ALJR 679

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

Bernard v Queensland Police Service [2016] QDC 283

R v O'Neill [1996] 2 Qd R 326

R v Leavitt [1985] 1 Qd R 343

R v De Silva [2007] 176 A Crim R 238

COUNSEL

K Robinson (sol) for the appellant

M A Lyell for the respondent

SOLICITORS

Aboriginal and Torres Strait Islander Legal Service for the appellant

Queensland Police Service Legal Unit for the respondent

Issue in the appeal

  1. [1]
    At about 4pm on 30 December 2020 police were conducting a patrol in the town of Weipa in Cape York. They stopped a four wheel drive vehicle in which Mr Woolla was a passenger. Police searched the vehicle and found alcohol concealed in it. When asked, Mr Woolla agreed that he intended to travel to Aurukun. Aurukun is approximately 200 kilometres or three hours drive from Weipa.
  1. [2]
    Police charged Mr Woolla with an offence pursuant to s 168C(1) of the Liquor Act 1992 (Qld) (the Act), which states:

“A person must not attempt to enter a relevant restricted area if the person has in possession more than the prescribed quantity of a type of liquor for the area.

Maximum penalty – 375 penalty units.”

The relevant restricted area alleged was Aurukun.

  1. [3]
    After a summary trial in the Magistrates Court at Weipa on 22 March 2021, Mr Woolla was convicted, fined $600 and the alcohol forfeited.
  1. [4]
    Mr Woolla appeals against his conviction pursuant to section 222 of the Justices Act 1886 (Qld) (the ‘Justices Act’).  There was no challenge to the sentence.
  1. [5]
    The sole ground of appeal was that the verdict was unreasonable and could not be supported having regard to the evidence.
  1. [6]
    The appeal concerns a single issue: whether the evidence was sufficient to prove beyond reasonable doubt that Mr Woolla attempted to enter a restricted area, contrary to s 168C of the Act.
  1. [7]
    It is not for this court to issue guidelines about, or attempt to delineate, when a person’s conduct will hypothetically be sufficient to constitute an attempt to enter under this provision, and when it will not. There is no bright line to assist the parties in distinguishing other cases. Each case will necessarily turn upon its own facts.
  1. [8]
    For reasons explained below, I have concluded that the evidence was not sufficient to establish beyond reasonable doubt that Mr Woolla was attempting to enter the relevant restricted area. The appeal should be allowed and his conviction set aside.

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.[1]
  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.[2] 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.[3] 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.[4]

Summary of the evidence at trial

  1. [12]
    The prosecutor called one police witness, and tendered an audio recording of his interaction with Mr Woolla.
  1. [13]
    Senior Constable Coppo gave evidence that he was working with another officer on 30 December 2020 conducting patrols targeting the transportation of liquor into remote Indigenous communities. At about 4pm on the Peninsula Development Road in Weipa, he intercepted a Toyota heading in an outbound direction in the direction of Aurukun.
  1. [14]
    He spoke with the driver. His driver’s licence showed a residential address in Aurukun. He asked the driver where he was driving and he indicated Aurukun. He requested the driver’s licence of the front passenger, who was Mr Woolla. He asked to search the vehicle in relation to alcohol. Mr Woolla declined, indicating they were in a hurry to get back due to the weather as it was raining. The officer saw through the window a wine bottle box with a sheet over it. He detained the occupants and searched the vehicle. He found a number of bottles of Bundaberg Rum in the box and more bottles secreted in the engine bay. A total of 12 bottles of rum were seized.
  1. [15]
    An audio recording of conversation between Senior Constable Coppo and the occupants of the vehicle was played, and tendered. In it, Senior Constable Coppo asked Mr Woolla the reason for taking the rum back to Aurukun. Mr Woolla said it was for his son’s anniversary. Senior Constable Coppo gave evidence that this was a reference to his son’s passing [away] on 1 January.
  1. [16]
    In cross-examination Senior Constable Coppo gave evidence that there was bad weather that day. He said it was storming and had been raining for a number of days.  He accepted that when he was told they were in a hurry to get back because of the rain, he inferred that that was because of the dirt roads and water.  He accepted that he had not asked precisely where in Aurukun Mr Woolla intended to consume the alcohol or with whom; that with dirt roads and water there were potential issues with travel back to Aurukun; and that he did not question Mr Woolla as to whether he had alternative plans in the event that he and the driver had not been able to get back to Aurukun because of the weather. He accepted that he could not exclude the possibility that they could have stashed the liquor somewhere in the bush and retrieved it at a later time, or stored the rum at a location outside the restricted area and drunk it there.
  1. [17]
    Mr Woolla did not give or call evidence.
  1. [18]
    One aspect of the conduct of the trial was unorthodox. The police prosecutor did not refer the learned Magistrate to any legislative provisions with respect to the relevant restricted area, nor did he identify the extent of the restricted area, or its boundaries. There was no evidence about this, nor was it addressed in submissions, or the decision.
  1. [19]
    It appears that the police prosecutor and the defendant’s solicitor (who were not the same advocates who appeared on the appeal), and the learned Magistrate, all proceeded on the basis that the township or community of Aurukun was located within the restricted area of the Shire of Aurukun and that the prescribed quantity of liquor for that area was zero, although that was never expressly stated.
  1. [20]
    On appeal, the respondent requested the court take judicial notice of the fact that the township of Aurukun is located geographically within the Shire of Aurukun. For the purposes of the appeal, I am prepared to do so.

The Magistrate’s decision

  1. [21]
    Her Honour found, correctly, that there was evidence that Mr Woolla was found in possession of alcohol and he intended to travel to Aurukun.
  1. [22]
    With respect to whether his intention was manifested by overt conduct, her Honour said this:

“The conduct that he must engage in in order to meet the criteria for attempt to enter, when considering the definition as discussed in Bernard, it must have some immediate connection with the contemplated entry;  that is to say, with his intention.  The defendant’s preparation, in this case, in my view, goes beyond mere preparation, and did amount to a real commitment by him to enter the restricted area.  He was, on his own admission, on his way to Aurukun when intercepted.  Whilst he was some way from the Aurukun township at the time, there is no evidence that there was another destination in mind, or an alternative intention, as there was in Bernard, when the defendant there immediately offered an alternative explanation for why – what was intended with the alcohol.

That other issues might have arisen to intervene – to subsequently prevent Mr Woolla from entering Aurukun is, in my view, mere speculation and does not go to raising a reasonable hypothesis consistent with innocence in this case.  Other options such as bad weather, a traffic accident, a flat tyre, a sudden change in mind, are all issues that might have interfered to ultimately prevent the entry, but if those things – which are nothing more than speculation, without evidence to suggest that one of those things was likely to interfere.  To accept those would mean, in my view, that almost no defendants would be found guilty of an offence under this section unless they were actually stopped, perhaps whilst crossing the actual town border, and that can’t be suggested that that’s what the section suggests.

There is no – sorry, there was no reasonable alternative explanation offered by the defendant at the time that he was intercepted and spoken to by police, nor in evidence in this court.  The connection, in my view, is – does not depend upon the distance from which he was from the town border.  The connection, or nexus, between the intention and the action to carry out the – sorry, is the nexus between the intention and the action to carry it out.  He’d clearly formed an intention to enter Aurukun with alcohol in his possession.  He tried – that is to say, he made an effort to make that happen, and that meets the definition of attempt to enter, as discussed in Bernard and, particularly, as discussed at paragraphs 42 and 43 of that case, which I was referred to.  The defendant’s intention was only stopped because of the police intervention, and I find that each of the elements has been made out beyond reasonable doubt, and he is guilty of the offence before the court.”[5]

Statutory framework

  1. [23]
    One of the “main purposes” of the Act is “to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence”: s 3(e).
  1. [24]
    Part 6A deals with provisions concerning Restricted Areas. Section 173F states:

“173F Purpose of pt 6A

The purpose of this part is to provide for the declaration of areas for minimising—

  1. (a)
    harm caused by alcohol abuse and misuse and associated violence; and
  1. (b)
    alcohol-related disturbances, or public disorder, in a locality.”
  1. [25]
    Section 168B of the Act creates an offence of possessing liquor in a restricted area:

“168B Prohibition on possession of liquor in restricted area

  1. (1)
    A person must not, in a restricted area to which this section applies because of a declaration under section 173H, have in possession more than the prescribed quantity of a type of liquor for the area, other than under the authority of a restricted area permit.

Maximum penalty—

(a) for a first offence—375 penalty units; …”

  1. [26]
    Section 168C creates a separate offence of attempting to take liquor into a restricted area:

“168C Attempt to take liquor into restricted area

  1. (1)
    A person must not attempt to enter a relevant restricted area if the person has in possession more than the prescribed quantity of a type of liquor for the area.

Maximum penalty—375 penalty units.”

  1. [27]
    “Restricted area” is defined in s 4 as “an area declared under s 173G(1) to be a restricted area”.
  1. [28]
    Section 173G provides that a regulation may declare an area to be a restricted area.
  1. [29]
    Schedule 1A of the Liquor Regulation 2002 (Qld) (‘the Regulation’) declares the Shire of Aurukun a restricted area:
  1. 1. Areas declared to be restricted areas

Each of the following areas is a restricted area—

  1. (a)
    the area of the Shire of Aurukun;
  2. (b)
    the foreshore of the area of the shire.
  1. 2.Prescribed quantity

The prescribed quantity of liquor of any type for each restricted area is zero.

  1. [30]
    The offence in s 168C was created in 2008.[6] The context in which the provisions are found can be determined by reference, in part, to the extrinsic material. The purpose or policy objective was expressed in the Explanatory Note, which included the following statements:

“The objective of ensuring that the full policy intent of the alcohol restrictions in discrete Indigenous communities is achieved by amending the appropriate legislation to ensure that all parts of the restricted area are subject to the restrictions; the police have appropriate powers to enforce the restrictions…[7]

Clause 23 inserts a new section 168C, namely an attempt to take alcohol not allowed under the ‘carriage limit’ into a restricted area.

This provision aims to prevent ‘sly grogging’ and illicit alcohol getting to the restricted area where it is dispersed or hidden very quickly by the sly groggers or those who obtain alcohol from them.

The penalty for the attempt provision is high for a simple offence – 500 penalty units, which is $37,500 at the time of introduction of the Bill. This enables a suitable penalty to be imposed where there is a large ‘shipment’ of sly grog. It is also in line with the general rule that the penalty for an attempt should be no more than half the penalty for an actual breach. The offence of breaching a restricted area has a maximum penalty of 1000 penalty units and 18 months imprisonment for a third offence.”

“Attempt” in s 168C

  1. [31]
    There are no Court of Appeal authorities on s 168C. The parties referred me to the only District Court appellate decision on that offence, Bernard v Queensland Police Service [2016] QDC 283.
  1. [32]
    In Bernard,  Morzone QC DCJ said that the definition of “attempt” in s 4 of the Criminal Code does not apply to s 168C because the offence does not concern an attempt to commit a principal offence, and “attempt” in s 168C should be given its ordinary English meaning.[8] He relied upon R v Leavitt  [1985] 1 Qd R 343, which is authority for the proposition that the definition in s 4 of the Code does not apply to an offence of attempting to bring about a physical result which is not itself another offence. In Bernard Morzone QC DCJ took the view that s 168C was related to the offence of possession in s 168B but was a different and distinct provision, and that s 168C did not involve an attempt to commit another specific offence.[9]
  1. [33]
    I have a different view of the interaction between s 168B and s 168C of the Act. In my respectful view, s 168C is capable of being characterised as an offence of attempt to commit another specific offence, for reasons explained below.
  1. [34]
    In the end, as was the case in O'Neill,[10] I do not consider that anything turns upon whether, in construing s 168C, one uses the definition of attempt in s 4 of the Code or the ordinary meaning of that word because there would be no difference in the outcome in this case.
  1. [35]
    Section 4 of the Criminal Code provides:

Attempts to commit offences

  1. (1)
    When a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.
  1. (2)
    It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender’s part for completing the commission of the offence, or whether the complete fulfilment of the offender’s intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of the offender’s intention.
  1. (3)
    It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
  1. (4)
    The same facts may constitute one offence and an attempt to commit another offence.”
  1. [36]
    That definition in s 4 applies to s 535 of the Code which, by subsection (1), provides that if a person attempts to commit a crime, the person commits a crime. The definition in s 4 also applies to other provisions of the Code, which provide for an offence constituted by an attempt to do something which is itself another offence.  An example is s 306, by which a person who attempts unlawfully to kill another is guilty of a crime, it being an offence to kill another unlawfully:  R v O'Neill [1996] 2 Qd R 326 at 432 per Dowsett J (Pincus JA agreeing at 422).
  1. [37]
    The position is different where there is a provision of the Code, under which it is an offence to attempt to bring about a physical result, which is not itself another offence.  An example is s 317 of the Code, considered in R v Leavitt. The offender was charged under s 317(2) of the Code that, “with intent to resist his lawful arrest, (he) unlawfully attempt(ed) to strike a person with a projectile, namely a bullet”. It was held that s 4 of the Code did not apply to s 317(2) because that section was not concerned with an attempt to commit an offence, but an attempt to bring about a physical result, which attempt is constituted by the offence.
  1. [38]
    In this case, the relevant provisions of the Act criminalise both attempting to enter a restricted area with liquor and possessing liquor in a restricted area.
  1. [39]
    The wording of s 168C (“A person must not attempt to enter a relevant restricted area if the person has in possession more than the prescribed quantity of a type of liquor”) is different from the wording of s 168B (“A person must not, in a restricted area … have in possession more than the prescribed quantity of a type of liquor”). Nonetheless in my view s 168C is capable of being characterised as an offence of attempt to commit another specific or distinct offence, in the sense used in O'Neill. That is because s 168C criminalises attempting to do that which is an offence in s 168B: being in a restricted area in possession of more than the prescribed quantity of alcohol.  For the purposes of s 168C, the offender is attempting to bring about a physical result which is the entry into a restricted area with more than the prescribed quantity of alcohol. That physical result, if achieved, itself constitutes another offence. That is because under s 168B, once a person enters a restricted area in possession of more than the prescribed quantity of alcohol, they are committing an offence (unless a defence applies). In my view, an offence under s 168C involves an attempt to commit another offence.
  1. [40]
    To constitute an attempt there must be an actual intent to commit the offence. That is not in dispute here.
  1. [41]
    But intention is not all that is required. In addition, the offender must begin to put that intention into execution by means adapted to its fulfilment, and the intention must be manifested by some overt act.
  1. [42]
    There is a longstanding and well-settled distinction between an attempt to commit an offence, and mere preparation to commit an offence.[11]   In R v De Silva, Jerrard JA said: “Section 4 does not make that distinction, in terms, but it has always been recognised in this State.[12] 
  1. [43]
    He agreed that the following remarks of Salmon J in R v Barker accord with s 4 of the Code[13]:

“It is now settled law that to constitute an attempt, it is not necessary that the accused should have done his best or taken the last or proximate step towards the completed offence… All that can be definitely gathered from the authorities is that to constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required. The dividing line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is determined the authorities give no clear guidance.”[14]

  1. [44]
    After referring to earlier authorities and benchbook directions in various jurisdictions, Jerrard JA concluded:

“The distinction between preparation to commit an offence and an attempt to commit is thus well established in the common law and criminal statutes in Australia and in New Zealand, and in suggested directions to juries. The approach taken by Stable J in R v Williams accords with that in other States. It is not necessary to establish that the last act possible was done before the completed offence would occur, to prove an attempt to commit that offence; and sufficient was established in this matter. It is usually necessary to instruct a jury to distinguish an attempt   from preparation, but that is because the defence has usually advanced that there was only preparation, and no more.”[15]

  1. [45]
    The relevant extract from the suggested direction for “attempt” in the current Queensland Supreme and District Courts Criminal Directions Benchbook states:

“You then have to consider what the defendant did, when, it is alleged, he/she was attempting to [commit the offence].  A mere intention to commit an offence does not matter, if the defendant had not started to put his/her intention into effect, by conduct, i.e. some acts or acts by him/her which were directed to achieving the defendant’s purpose.  Further, the defendant’s conduct must have been something which, if anyone had been watching it, would have made the defendant’s purpose clear.  The prosecution must prove, beyond reasonable doubt, that there was something done by the defendant which was conduct of the kind which I have just described.

Therefore you have to consider the evidence of what the defendant was doing when, the prosecution argues, he/she was attempting to [commit the offence].  You must be satisfied, beyond reasonable doubt, that he/she was doing what the prosecution alleges he/she was doing.  You then have to consider whether, by that conduct, the defendant had begun to put his/her intention into effect, and whether the conduct would make it clear to someone watching it that the defendant had the purpose which the prosecution alleges.

It is unnecessary for the prosecution to prove that the defendant did everything which he could have done to bring about the intended result. 

[Where appropriate, this might be added:  The argument for the defendant is that what was done/alleged to have been done was, at the most, merely preparation ahead of any attempt to [state the result], so that when the defendant was doing those things, he/she was not then in the process of trying to [state the result].  Our law recognises that merely doing something to prepare for the commission of an offence, is not of itself an attempt to commit the offence.  It is for you to assess whether you are satisfied, beyond reasonable doubt, that the defendant’s acts went beyond mere preparation.]”[16]

Consideration

  1. [46]
    Section 168C(1) of the Act states: 

“A person must not attempt to enter a relevant restricted area if the person has in possession more than the prescribed quantity of a type of liquor for the area.”  

  1. [47]
    In order to convict Mr Woolla of this offence, the prosecution had to prove beyond reasonable doubt the following elements of the offence: 
  1. 1.That Mr Woolla attempted to enter; 
  2. 2.A relevant restricted area; 
  3. 3.While in possession; 
  4. 4.Of more than the prescribed quantity of a type of liquor for the area. 
  1. [48]
    The third and fourth elements were not in dispute. Mr Woolla was the owner of the vehicle and claimed possession of the alcohol. The prescribed quantity of alcohol for the Shire of Aurukun is zero. 
  1. [49]
    The first and second elements were in dispute: whether Mr Woolla had attempted to enter the relevant restricted area, being the Shire of Aurukun. 
  1. [50]
    The issue is whether Mr Woolla had put his intention to enter the restricted area in possession of alcohol into execution “by means adapted to its fulfilment” and had performed an overt act manifesting that intention; or whether, despite his intention, his actions had not yet reached that point.
  1. [51]
    For Mr Woolla to have committed an offence under s 168C, it is necessary that the conduct attributed to him be more than merely preparatory to the commission of the offence. That is, his conduct or acts be more than acts merely preparatory to attempting to enter the restricted area.
  1. [52]
    The various expressions of the test in the authorities are necessarily in general terms. What is at issue here is their application to the facts of this case. 
  1. [53]
    I respectfully agree with Morzone QC DCJ’s statement in Bernard at [43]:

“… But mere intention to bring about the result will be insufficient to constitute an attempt for the purposes of s 168C. It must be manifested by overt conduct to that end. The conduct must, in my view, be sufficiently proximate to the resultant entry into the restricted area. That is, the conduct must be immediately, not remotely, connected with the contemplated entry into the restricted area. It must go beyond mere preparation and must amount to a real commitment to enter the restricted area with the prohibited alcohol. But it is not necessary that the accused should have tried his best or taken the last steps to enter the restricted area.” [Footnotes omitted, emphasis added]

  1. [54]
    An attempt is sufficiently proved if the actions of the persons concerned are directed towards the commission of the completed offence other than being a mere preparation to do so. This offence is directed towards entering a restricted area.  Clearly, if one is talking about entering an area or premises, it is enough that the person or any part of the person has entered the relevant place. The offence being attempting to enter a restricted area with the relevant quantity of alcohol, there must be some immediacy with entry to the restricted area in question.
  1. [55]
    At trial and on appeal, Mr Woolla’s legal representatives conceded that there was evidence that he was in possession of alcohol and that he intended to travel to Aurukun. For the purposes of this appeal, Mr Woolla’s intention was not in issue.
  1. [56]
    Nonetheless, the evidence of intention was limited. The parties identified the portions of the audio recording said to amount to evidence of the appellant’s intention. The highest that it rose to was this:
  1. 1.at 00:31 to 00:39 the officer can be heard asking where they are driving to. The answer is inaudible. The officer then says something that is inaudible and the word “Aurukun” with a rising inflection. Again, the answer is inaudible.
  2. 2.At 05:40 onwards, the officer says words to the effect “you’ve said you’re going back to Aurukun?” and the answer is “yes”. The officer says “You’re aware it’s restricted area” and the answer is “yes”. The speaker is not identified. The parties agreed that it was unclear whether it was Mr Woolla saying “yes” or the driver.
  3. 3.At 06:29 onwards, particularly 06:35 there is an exchange in which Mr Woolla says “I’ll put it under my name, cos it’s my car.” He is asked “what is the reason for you taking the alcohol back to Aurukun” and he answers “for my son’s anniversary”.
  1. [57]
    The respondent’s counsel submitted that the “proximity” should not be construed as temporal or geographical but rather must be causal, and that the Magistrate correctly found that proximity did not depend on the distance. He gave two examples by way of analogy.
  1. [58]
    The first example was a person in a car apprehended in Brisbane with liquor in their possession who admitted their intention was to drive to Aurukun. The respondent’s counsel submitted that if there was evidence of the person’s intention to drive to Aurukun and enter the relevant restricted area with the liquor, then even if they were apprehended thousands of kilometres away in Brisbane, that would be sufficient evidence to convict of the offence. He said that the means of transport was not decisive, and that that geographical distance would not prevent them being convicted. I disagree. In my view, that example would not come close to proving the offence. It lacks the requisite proximity or immediacy with entry to the restricted area. The example is too remote to be more than merely preparatory.
  1. [59]
    The second example given was a person in Brisbane who boarded a direct flight to Aurukun with alcohol in their possession and where there was evidence of the defendant’s intention to enter the restricted area, from their admissions or otherwise. I accept that once the person boarded a direct flight to the restricted area and the aircraft departed, that would constitute a real and final step to manifest their intention to enter the restricted area with alcohol in their possession, and there would be evidence upon which they could be convicted of the offence.
  1. [60]
    Here, Mr Woolla was a passenger in a vehicle intercepted in Weipa. Police found alcohol concealed in the vehicle. Mr Woolla effectively took responsibility for the alcohol. He admitted that he intended to drink the alcohol in Aurukun. The township of Aurukun was approximately 200 kilometres and 3 hours drive away.
  1. [61]
    Clearly, there was evidence of steps taken in preparation to take alcohol to Aurukun. Alcohol had been secreted in the vehicle. By that conduct, Mr Woolla had begun to put his intention into effect. But it was not sufficient evidence of an overt act to enter a restricted area.
  1. [62]
    The conduct up to that point was by no means clear to someone watching it that Mr Woolla had the purpose of entering a restricted area some 200 kilometres and three hours drive away. There was no evidence about the exact location of the intercept in Weipa except that it was on the Peninsula Development Road, nor its proximity to the boundary of the restricted area. The vehicle had not even left Weipa.
  1. [63]
    The Peninsula Development Road is the main road running north south through Cape York. It is not a direct road to Aurukun. There are a number of other roads leading off it. Mr Woolla was not the operator or driver of the vehicle. The weather was bad. There was a concern that the road into Aurukun may be impassable. 
  1. [64]
    The acts relied upon as constituting the attempt to enter were not acts immediately connected with the contemplated entry into the restricted area. In my view, they were too remote.
  1. [65]
    There was insufficient evidence to prove beyond reasonable doubt conduct by Mr Woolla that was proximate or immediate to contemplated entry into the restricted area. There was no manifestation of the intention to enter Aurukun that was sufficiently proximate to the actual entry point to the restricted area.
  1. [66]
    In my view, the evidence was not capable of establishing an attempt to enter the restricted area, as opposed to mere preparation. On the state of the evidence, it was not open to her Honour to conclude that the steps Mr Woolla took were more than "remotely leading towards the commission of the offence", and in fact were "immediately connected with it." The acts relied upon lacked the requisite immediacy with entry to the restricted area to constitute the offence.

Conclusion and orders

  1. [67]
    It follows that the evidence was insufficient to prove the elements of the offence beyond reasonable doubt.
  1. [68]
    I would allow the appeal and set aside the conviction (and consequential orders).
  1. [69]
    As no party made any submissions with respect to seeking costs, I will make no order as to costs.

Footnotes

[1] 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).

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

[3] Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, 686-687; Robinson Helicopter Company Inc v McDermott & Ors [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.

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

[5] Transcript of Decision, 22 March 2021, 2 line 34 – 3 line 20.

[6] By enactment of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Act 2008, commencing 1 July 2008.

[7] Explanatory Notes to Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Bill 2008, 6.

[8] Bernard v Queensland Police Service [2016] QDC 283 [33] – [41].

[9] Bernard v Queensland Police Service [2016] QDC 283 [36] – [37].

[10] R v O'Neill [1996] 2 Qd R 326 per Dowsett J, 432.

[11] R v De Silva [2007] 176 A Crim R 238, 247.

[12] R v De Silva ibid [12].

[13] R v De Silva ibid [21].

[14] R v Barker (1924) N.Z.G.L.R. 393, 397-398, per Salmond J.

[15] R v De Silva [2007] 176 A Crim R 238 [27].

[16] Queensland Supreme and District Courts Criminal Directions Benchbook, 71.2-71.3.

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Editorial Notes

  • Published Case Name:

    Woolla v Commissioner of Police

  • Shortened Case Name:

    Woolla v Commissioner of Police

  • MNC:

    [2021] QDC 284

  • Court:

    QDC

  • Judge(s):

    Fantin DCJ

  • Date:

    19 Nov 2021

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