Millar v Commissioner of Police
[2024] QDC 114
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- Appeal Determined (QCA)
- Millar v Commissioner of Police[2024] QDC 114
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Millar v Commissioner of Police[2024] QDC 114
Millar v Commissioner of Police[2024] QDC 114
DISTRICT COURT OF QUEENSLAND
CITATION: | Millar v Commissioner of Police [2024] QDC 114 |
PARTIES: | ANDREW JOHN MILLAR (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO: | 3468/23 |
DIVISION: | Civil |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 8 August 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 June 2024 |
JUDGE: | Richards DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – where the appellant was convicted of public nuisance after a summary trial – whether the decision was against the weight of the evidence – whether the summary proceeding was affected by fraud and fabricated evidence by the prosecution – whether the elements of the offence were made out – whether evidence needed by defence was destroyed by the prosecution |
LEGISLATION: | Criminal Code Act 1899 ((Qld) Justices Act 1886 (Qld) Summary Offences Act 2005 (Qld) |
CASES: | Austin v Commission of Police [2022] QDC 230 Coleman v Power & Ors [2004] 220 CLR 1 Couchy v Birchley [2005] QDC 334 Gallagher v The Queen [1986] 160 CLR 392 Green v Ashton [2006] QDC 008 House v The King [1936] 55 CLR 499 Kaporonovski v R [1973] 133 CLR 209 Kris v Tramacchi [2006] QDC 305 Police v Christie [1962] NZLR 1109 |
COUNSEL: | The Appellant appeared in person L Kerr for the Respondent |
SOLICITORS: | The Director of Public Prosecutions for the Respondent |
Introduction
- [1]The appellant was convicted of public nuisance after a summary trial in the Brisbane Magistrates Court. He was fined $650, and a conviction was recorded. He has appealed that conviction on the following grounds:
- The decision was against the weight of the evidence.
- The proceeding was affected by fraud and fabricated evidence by the prosecutor.
- The elements of the offence were not made out.
- Evidence needed by defence was destroyed by prosecution.
Facts
- [2]The Crown case was that on 19 July 2022, the appellant was in the Supreme Court Library. Also in the library on that day was a woman called Emma Thompson. Brendan Copley, an employee of the Supreme Court Library, was working at the time when he was asked to call security by a woman.[1] Mr Copley, in cross-examination, agreed that Emma Thompson had said to him, “Did you hear what he said to me?” and he said he did not hear Mr Millar say anything to Ms Thompson but saw him walking with some papers, and it looked like he was going back to sit at a table.[2] The appellant, in his evidence, said he was talking on the phone in the library when Ms Thompson came up to him and, from about 10 metres away, told him off for talking. He waved her away and did not engage with her. He sat down and finished his conversation, and within a short time the officers came up to him.[3]
- [3]The security control room received a phone call at about 9.30 am in the morning, and they were advised there was an altercation in the library on Level 12. Jennifer Wright and Kent Sharman, both Senior Protective Service Officers, went to the library, spoke with the librarian and they were pointed towards two individuals that were believed to be involved in the altercation[4]. Officer Sharman spoke with the appellant, and Officer Wright said that she spoke with Emma Thompson. [I note Officer Wright’s evidence differs from Mr Copley, who said no-one spoke to Ms Thompson until after the altercation and after Mr Millar left the library]. In relation to the interaction between the appellant and the security officers, Mr Copley said there was a lot of shouting going on from both sides, and most of the library would have been able to hear the raised voices.[5] The security officers asked the appellant for his name and indicated they would remove him from the library if he refused to give his name.
- [4]What happened thereafter is reasonably uncontroversial in terms of the sequence of events. The appellant indicated he would leave the library. He was not detained at any stage. He walked out of the library, and the three security guards (by now Officer Bryant was also in the library) followed him to the lift area. Mr Millar pushed the lift button to go down. He entered the lift, followed by Bryant, then Sharman, then Wright. As Wright entered the lift, he said,
“I basically responded to something she said to me in the lift in the same manner in which she spoke to me, which unfortunately that footage is now not available and that’s it. I didn’t attempt to strike her in anyway. I just basically communicated back to how she was communicating to me.”[6]
- [5]The appellant maintains that whilst he was waiting for the lift, Officer Wright was speaking aggressively to him and that the other officers were following very closely. He said they walked within about 20 centimetres of him, staring at his face and calling him mate in a derogatory way whilst they were awaiting for the lift.[7] He found it threatening and intimidating.
- [6]Officer Wright says that whilst she was standing in the back corner of the lift, the appellant made a move towards herself, and that was when Officer Bryant stepped in and removed him away from her and detained him. She said she did not have time to react. She froze, as she was not expecting him to react in that manner. She had not expected him to almost intimidate her like that.[8]
- [7]It was put to Officer Wright that as they were leaving the library and going to the lift, she and her two colleagues walked in a very, very close manner towards the appellant the entire trip. She said, “You could put it that way?”.[9] “Under 30 centimetres in distance – roughly the same distance you came to me in the lift?”. “Yes”.[10] In re-examination, she moved away from that statement by saying that she was using an example of how close they came and it would be a distance greater than 30 centimetres to walk comfortably behind the appellant.[11]
- [8]Kent Sharman was the second officer who went to the Supreme Court Library. He indicated that as they were escorting the appellant out of the building, he got very close to Officer Wright and Officer Bryant went “hands on” with the person. His description was as follows:[12]
“He was calling her mate very close to her face in what I believe to be an aggressive tone and nature to it. Saying ‘mate how do you like being called mate’ something like that.”
- [9]In cross-examination, Officer Sharman indicated that Wright was not acting aggressively towards the appellant, and the only time Officer Wright called him “mate” was when they spoke in the library.[13] He could not remember Officer Wright saying that she had a complaint of assault against the appellant.
- [10]Officer Bryant indicated that he came up after the first two officers. He escorted the appellant with the two others. He said once they entered the elevator, the appellant abruptly turned in and closed in on Officer Wright rather quickly, and he believed he was going to assault Officer Wright, so he pushed him back and then detained him. He said his body language was aggressive in nature and he thought there was potential for assault.[14]
- [11]The final witness for the prosecution was Constable David Baker, who arrested the appellant. He gave evidence that he endeavoured to contact Emma Thompson but was unable to get on to her. He had rung a number that he believed belonged to her but had no luck connecting with her. He also gave evidence that the CCTV footage that was presented to the court was the only CCTV footage he received.
Nature of the appeal
- [12]This appeal proceeds pursuant to s 222 of the Justices Act 1886 and is by way of rehearing. Due deference and weight, however, should be given to the Magistrate’s view of the evidence, and in order to succeed on appeal the appellant must establish some legal, factual or discretionary error. The principles governing an appeal of this kind have been long established by the High Court in House v The King [1936] 55 CLR 499 at 505 per Dixon, Evatt & McTiernan JJ:
“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
- [13]New evidence may be admitted with leave.
- [14]In this case the appellant has sought to lead evidence by way of affidavit from Emma Thompson, who in her affidavit has indicated that she was in the library on 19 July 2022 and that she remembers the incident where the security officers came up to the library. She says it caused her distress and that she did not speak with the security officers that attended the library, but soon after she was approached by Andrew Nicholls, the Senior Security Officer, who spoke to her.
- [15]The Crown has submitted that leave to tender this evidence should be refused and relies on the decision of Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392, which dealt with the basis for allowing the receipt of fresh evidence on appeal namely: whether the evidence relied on could with reasonable diligence have been produced by the accused at trial, whether the evidence is apparently credible or at least capable of belief and whether the evidence of belief might reasonably have led the tribunal of fact to return a different verdict.
- [16]The Crown accepts that the evidence could likely not have been produced with reasonable diligence at trial. The appellant has encountered Ms Thompson by accident and the police were unable or unwilling to find her. However, the Crown submits that there are concerns relating to her credibility and the lack of detail in her affidavit makes it difficult to assess her credibility. Finally, the Crown submits that the evidence would not have made any difference to the ultimate verdict in this case.
- [17]I have indicated that for the purposes of this appeal that I would allow Mr Millar to tender the affidavit of Ms Thompson. However, I accept the Crown’s submission that there is very little relevance to the affidavit. All the evidence at trial was to the effect that Ms Thompson was in the library. There is differing evidence as to whether Officer Wright spoke to Ms Thompson. Ms Thompson says she was not spoken to, as does Mr Copley. Her affidavit is only relevant as it goes to the accuracy of the recollection of Officer Wright. There is no dispute that the security officers were called to the library by Mr Copley in relation to an altercation in the library. I will allow the admission of the evidence of Ms Thompson; however, limited weight can be placed on her evidence.
Grounds of appeal
- [18]The appeal grounds overlap in some respects. I propose to deal with them by examining firstly the effect on the fairness of the trial of the loss of CCTV evidence and failure to call Emma Thompson as a witness and secondly the elements of the offence of public nuisance and whether they were made out in this case.
The missing evidence
- [19]The appellant maintains a miscarriage of justice occurred because there was a failure to disclose footage from cameras positioned outside the lift on the 12th floor of the court building. It was generally accepted that there were security cameras positioned in the waiting area outside the lifts on the 12th level. There was no suggestion that those cameras were not working. Officer Wright, who downloaded the CCTV images that were tendered in the trial, gave evidence[15] that she checked the camera that sits over the foyer in the lifts, and she believed she had downloaded that footage and had attached it to a folder in the USB that she supplied to police. Constable Baker gave evidence that he went to the court building and collected a USB stick and downloaded it onto a disk[16]. At the trial, the disk did not contain footage of the foyer outside the lift on Level 12. It is submitted by the appellant that this failure to disclose the footage amounts to a fatal error in this case because disclosure of that footage would have shown the aggression to which he was subjected by the security officers and would have justified his actions in the lift.
- [20]I accept that the CCTV footage of the foyer area outside the lift on Level 12 should have been disclosed. It is not clear what happened to that footage. Officer Wright thought the footage had gone to the police officer. The police officer maintains that he downloaded whatever he received to the disk and the footage is not on the disk. The original USB was never produced. The appellant maintains that this has been deliberately concealed. That submission does not allow for human error. I do not accept the argument advanced by the appellant that the evidence has been deliberately concealed or deleted. If the footage was being deliberately concealed, then it seems unlikely that Officer Wright would have given evidence that she thought she had downloaded it and sent it to the police. The footage has either not been downloaded or has not been transferred to the disk.
- [21]The appellant has submitted that there was fraud or fabricated evidence by the prosecution. There were a number of adjournments during the trial for the prosecutor to obtain further instructions in relation to the existence or otherwise of the CCTV footage from the foyer of the 12th floor outside the lifts and in relation to a statement being taken from Emma Thompson. The prosecutor conveyed the information he was given to the court, but there is no basis upon which to draw a conclusion that the information that was placed before the court was fabricated. The evidence given by Constable Baker was to the effect that he has given all the material he had to the court; he could not contact Emma Thompson and, although he searched for her details, he was unaware whether he even had the correct contact details for the Emma Thompson that was present in the library on the day in question.
- [22]The real question in relation to the missing footage is whether the availability of the footage would have provided a defence for the appellant. For the purposes of this appeal, I am prepared to accept that the footage would have shown the security officers following very closely to the appellant and Officer Wright being as close to him as he was to her in the lift. The footage would not have had sound, so I am not prepared to make a finding that she was verbally harassing him. However, even if she was verbally harassing him, the question is whether that provides a defence to the actions in the lift or more precisely, whether any actions by the security officers prior to going into the lifts could result in a defence to the charge of public nuisance.
- [23]The appellant has submitted that the failure to supply the CCTV footage of the lift foyer has resulted in him being denied a defence that essentially amounts to provocation. He says that he was driven to behave in the way he did because of the actions of the security officers outside the lift, and he was merely responding in kind to them.
- [24]The defence of provocation is found in ss 268 and 269 of the Criminal Code. Importantly, it applies to offences where assault is an element of the offence. In Kaporonovski v R (1973) 133 CLR 209 the High Court held that provocation only applies to offences of which an assault is an element and is not available merely because on the evidence the offence charged in a particular case is shown to involve the commission of an assault. It therefore follows that in this case, where the offending is said to be disorderly or threatening behaviour, assault is not an element of the offence and provocation does not apply.
- [25]In Austin v Commission of Police [2022] QDC 230 it was noted that provocation did not apply in an offence of public nuisance and his Honour noted at paragraph [10]:
“The Acting Magistrate was quite right when he concluded that it is not a defence or excuse for a defendant to simply believe that they are entitled to behave in the way they did, because of a belief that the counsel had earlier acted in an unlawful way to the defendant’s detriment. The appellant’s contention that his behaviour might be excused for such a reason is misguided and wrong in law.”
Her Honour looked at the evidence of the physical act which was captured on CCTV and the evidence of the words said to Officer Wright during the course of the lift incident which do not seem to be in dispute. She decided that the behaviour established, even in a momentary way, that the defendant had behaved in a threatening way. There was a sudden movement towards Officer Wright, and he placed his head within a very short distance of her and aggressively made the statement that he made. The learned Magistrate was correct in finding that whatever happened outside the lift did not provide a defence to the charge.
Disorderly and threatening behaviour
- [26]The case was particularised as disorderly and/or threatening behaviour.
- [27]The offence of public nuisance is found in the Summary Offences Act 2005, Division 1. The object of that division is stated in s 5:
“This division has, as its object, ensuring, as far as practicable, members of the public may lawfully use and pass through public places without the interference from acts of nuisance committed by others.”
- [28]Public nuisance is defined under s 6 of the Act as follows:
“Public Nuisance
- A person must not commit a public nuisance offence.
…
- A person commits a public nuisance offence if—
- the person behaves in—
- a disorderly way; or
- an offensive way; or
- a threatening way; or
- a violent way; and
- the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.”
- [29]The concept of disorderly behaviour was considered in Coleman v Power & Ors [2004] 220 CLR 1 where Gleeson CJ, as he then was, noted:[17]
“In Melser v Police [1967] NZLR 437 the Court of Appeal declined to give the word “disorderly” its widest meaning. North P referred to a South Australian case, Barrington v Austen [1939] SASR 130 which held that “disorderly behaviour” referred to “any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, a street or public place.” He went on to say that the words were: ‘“…directed to conduct which at least is likely to cause a disturbance or annoyance to others’ (at 443). Turner J pointed out that the disorderly behaviour, like the insulting behaviour, prohibited by the section had to be such as would tend to annoy or insult people sufficiently deeply or seriously to warrant the interference of the criminal law. It was not sufficient that the conduct be indecorous, ill-mannered or in bad taste. The question, he said, was a matter of degree (at 444). McCarthy J pointed out that the law had to take due account of the rights, and freedoms, of citizens. He said that to be characterised as disorderly, conduct had to be ‘likely to cause a disturbance or to annoy others considerably’ (at 446).”
- [30]The Chief Justice went on to consider the type of language that might involve a disturbance of public order and noted:[18]
“Intimidation and bullying may constitute forms of disorder just as serious as the provocation of physical violence. But where there is no threat to the peace and no victimisation then the use of personally offensive language in the course of a public statement of opinions on political and governmental issues would not of itself contravene the statute. However, the degree of personal affront involved in the language and the circumstances, may be significant.
The fact that the person to whom the words in question were used as a police officer may also be relevant although not necessarily decisive. It may eliminate for practical purposes any likelihood of a breach of the peace. It may also negate a context of victimisation. As Glidewell LJ pointed out in Director of Public Prosecutions v Oram [1989] 1 WLR 88 at 93 it will often happen that ‘words and behaviour with which police will be wearily familiar will have little emotional impact on them save that of boredom’. But police officers are not required to be completely impervious to insult.”
- [31]Behaving in a disorderly manner was further defined in Police v Christie [1962] NZLR 1109 where it was said:[19]
“To behave in a disorderly manner is to act in a manner which contravenes good conduct or proper conduct. The behaviour in respect of which the section speaks is behaviour in a public place, so it has become simply a question of whether or not the behaviour in a public place seriously offends against those values or orderly conduct which are recognised by right thinking members of the public. There are certain manifestations of conduct in a public place which are an affront to and an attack on recognised public standards and orderly behaviour which well-disposed persons should stigmatise and condemn as deserving of punishment…The conduct must be serious enough to incur the sanction of a criminal statute.”
- [32]The behaviour in this case was momentary. It did not involve offensive language, but rather language that was uttered in an aggressive manner. In my view, it was not behaviour that was disorderly enough to sanction criminal conduct. The real question in this trial was whether it amounted to threatening behaviour.
The elements of the offence
- [33]The appellant has submitted that the elements of the offence were not made out because there was no evidence that the behaviour would interfere or be likely to interfere with a peaceful passage through or enjoyment of a public place by a member of the public. It was submitted by the appellant that the security officers were not members of the public as they were acting in the course of their employment.
- [34]There was ample evidence that the library and the lifts which access the library were in a public place, and there are no restrictions on entry other than the usual restrictions on bringing dangerous goods into a court building. Any member of the public is entitled to enter the library and the lifts which access the library. There was no dispute that the appellant was in a public place at the time.
- [35]The submission that a security officer is not a member of the public must be rejected. Discussing the provision [which was superseded by,, but was in identical terms to, this provision] under the Vagrants, Gaming and Other Offences Act 1931, Judge McGill, as he then was, in Couchy v Birchley [2005] QDC 334 noted the Second Reading Speech of the Act, where the Minister introducing the Act stated in particular that the provisions would apply to those who choose to insult or abuse police officers who are acting in the lawful execution of their duty. It was noted that police officers were members of the community the same as anyone else, and they should not have to accept offensive language directed to them. The principle that police officers are members of the public has been adopted in a number of cases that follow, Green v Ashton [2006] QDC 008 and Kris v Tramacchi [2006] QDC 305.
- [36]There is no reason to distinguish between police officers and security officers in this regard. Even when they are involved in attending to their normal duties in a public place; security officers are members of the public. In my view, that submission is unarguable.
- [37]Couchy v Birchley is also authority for the principle that the behaviour must be viewed objectively. However, it was also noted[20]:
“If there is evidence of some particular reaction on the part of members of the public to the particular conduct relied on as constituting the offence, that is evidence relevant to whether the person’s conduct interfered or was likely to interfere with the peaceful passage through or enjoyment of a public place by members of the public. It is necessary to relate the apparent response of the members of the public to the behaviour but a temporal connection may be sufficient to establish that.”
- [38]Her Honour was entitled to take into account the evidence given by the security officers who were in the lift with Officer Wright and the reaction of Officer Bryant in immediately pushing the appellant away as evidence that in fact there was an objective action that was threatening towards Officer Wright. The evidence, which the Magistrate was entitled to accept, was that the words were uttered in an aggressive manner, the sudden movement towards Officer Wright was threatening and there was concern that she was about to be assaulted. The interference with the enjoyment or peaceful passage through a public place was evidenced by the reactions of the parties in the lift.
- [39]The learned Magistrate, who is very experienced, was in the ideal position to judge the evidence of the witnesses and assess their credibility. She was entitled to take into account that accounts may differ with the passage of time, without the witness necessarily being untruthful. Having observed the witnesses giving their evidence, she was entitled to accept the evidence of the security officers. In my view there was credible evidence upon which the Magistrate could find beyond reasonable doubt that the public nuisance offence was established.
- [40]There is no basis to set aside the conviction in this case. The appeal is dismissed.
Footnotes
[1]T1-26, l 25
[2]T1-31, l 35
[3]T1-124, l 10-17
[4]T1-43, ll22-27
[5]T1-38, l 10.
[6]T124, l 35.
[7]T1-124, ll25-35
[8]T1-45, ll 34-40
[9]T155, l 25.
[10]T155, l 30.
[11]T1-63, ll 20-23
[12]T1-69, ll20-25.
[13]T1-72. ll 46-49
[14]T1-76, ll 27-28
[15]T1-57, l 25.
[16]Exhibit 4
[17] Coleman v Power & Ors [2004] 220 CLR 1 at [25]
[18]Coleman v Power & Ors [2004] 220 CLR 1 at [26]
[19]Police v Christie [1962] NZLR 1109 at [1113}
[20]Couchy v Birchley [2005] QDC 334 at [49]