Queensland Judgments


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Commissioner of Police v Flanagan  
Unreported Citation: [2018] QCA 109

This case is interesting because of the court’s consideration of the interaction between s 52, s 615 of the Police Powers and Responsibilities Act 2000 (PPRA) and the operation of the defence of mistake under s 24 of the Criminal Code.  The particular issue of interest was the application of s 615 PPRA which makes the exercise of powers under the PPRA lawful where the police officer holds a relevant suspicion.  Here the defendant police officer’s suspicion was a mistaken one.  The court explained that s 615 imposes a purely objective test as to whether the use of force was reasonably necessary in the exercise of a power under the PPRA, notwithstanding the police officer’s suspicion is a mistaken one.  A court must consider the lawfulness of the conduct under s 615 of the PPRA before looking to s 24 of the Code. 

Philippides and McMurdo JJA and Boddice J

5 June 2017

The charges related to an incident whereby the respondent, a police officer, had stopped the complainant’s car (which was speeding), drawn his gun, restrained and handcuffed him. [3]. The respondent was charged with unlawful assault of the complainant and unlawful deprivation of his personal liberty.  The respondent contended that he thought the vehicle was stolen and the complainant was reaching for a weapon.

Initially, in the Magistrates Court, the magistrate made factual findings that the prosecution had disproved that the respondent acted on the basis of an honest and reasonable but mistaken belief that the complainant was operating a stolen vehicle and was in possession of a firearm.  The respondent was found guilty of the offences. [4].

On appeal to the District Court the respondent contended that the magistrate had erred by failing to consider whether his acts were lawful pursuant to the PPRA. The primary judge allowed the appeal, set aside the convictions and remitted the matter to the Magistrates Court for rehearing by another magistrate, forming the view that the trial had miscarried since the magistrate had not had regard to whether the respondent was lawfully exercising a power under the Act: namely, whether the respondent had a reasonable suspicion that the complainant was driving a stolen vehicle or had a firearm, so as to give rise to powers under the Act and, if so, whether the force used was reasonably necessary for the purposes of s 615.  [5].

The applicant sought to appeal the primary judge’s decision on the grounds that:

  1. the primary judge erred in law in concluding that it was necessary for the prosecution to prove, beyond reasonable doubt, that the force used in assaulting and detaining the complainant exceeded what was more than reasonably necessary to deal with the offence or offences the respondent reasonably suspected had been or would be committed; and
  2. the primary judge erred in acting contrary to s 223(1) of the Justices Act 1886, given she failed to conduct the appeal as a rehearing, to make her own assessment of the evidence and to form her own conclusions about the respondent’s culpability.

The applicant challenged the reasoning of the primary judge as erroneous, essentially on the basis that a reasonable suspicion, where it was mistaken, as to the existence of a state of things was sufficient to affect the assessment of criminal liability. That was because it was only an honest and reasonable belief pursuant to s 24 of the Code that could alter the assessment of criminal liability. [35].

The respondent contended that his conduct was not unlawful if he was acting within s 52 and s 615 of the PPRA (ie, taking steps, including using force that he considered reasonably necessary to prevent an offence that he reasonably suspected was being or was about to be committed) and that the magistrate had failed to decide that before turning to s 24 of the Code. [37], [38].

The operation of s 615 of the PPRA and s 24 of the Code

In examining the merits of ground 1, the court articulated as follows:

  1. The magistrate incorrectly proceeded on the assumption that the issue of whether the respondent’s use of force was reasonably necessary for the purpose of s 615 of the PPRA was to be ascertained on the true state of affairs at the time of the respondent’s conduct. That error resulted in the magistrate neglecting to consider whether the respondent’s conduct was authorised under the PPRA. [42]
  2. Pursuant to the PPRA, powers are conferred on a police officer upon a relevant reasonable suspicion being held, making the exercise of those powers lawful. Section 615 imposes a purely objective test as to whether the force used is reasonably necessary for the exercise of the power (see Whitelaw v O’Sullivan [2010] QCA 366). [49].
  3. Section 24 of the Code operates so that the defendant is not criminally responsible to any greater extent than if the state of things had been such as the defendant believed them to be.  The relevant test under s 24 of the Code is a subjective inquiry, whether the grounds held by the defendant for the mistakenly held belief were reasonable, rather than what a reasonable person would have believed. [49].

The court found that the primary judge did not err in determining that s 615 operated to make lawful the use of force in the exercise of a power under the PPRA despite the relevant suspicion being unfounded. [50]. But, ultimately, the court concluded that in view of the magistrate’s rejection of the respondent’s evidence as to what he thought the circumstances he was facing appeared to be, the finding that the respondent acted in the lawful exercise of a power under the PPRA was not open. [60], [61], [85]. In the circumstances, there was no basis for setting aside the convictions. [62]. 

A de Jersey