Coleman v Kinbacher & Anor

[1]

The applicant disavows any constitutional challenge to s 7(1)(e). It does not form part of his application for leave to appeal to this court. His point seems rather to be that because he was engaged in what he regarded as a political protest his right to communicate his criticisms of Government migration policy were protected by the Constitution and his conduct could not therefore be disorderly.

[2]

`It is really a balancing exercise that has to be performed - the unquestionable right of the defendant to make a peaceful protest, as opposed to the rights of other persons to enjoy a festive, family occasion, in a public park, free from disturbance, or concerns as to health and safety. ... The crucial and significant facts ... were ... the actual decision ... to burn the flag of that size, with the aid of an accelerant, at that particular time and place, that he did ignite, and the adverse affect his behaviour appeared to have on some of (the) public present at the time. I still find then, that the manner of the defendant could be fairly classified as disorderly. I consider the defendant has unfortunately made an error of judgment in choosing that time and place to make his particular protest.'

[3]

[20] The Magistrate considered this argument by reference to the relevant authorities, O'Connor v Police [1972] NZLR 379, in which Richmond J said `... The court has to apply an objective test to the conduct in question and determine as a matter of time, place and circumstances whether it was of a kind likely to cause serious annoyance or disturbance to some person or persons present', Melser v Police [1967] NZLR 437 in which Napier J remarked `I have no doubt that these words `disorderly behaviour' refer to any substantial breach of decorum which tends to disturb or interfere with the comfort of other people who may be in, or in the vicinity of, the street, or public place.' and Watson v Trenerry [1998] NTCA 22; (1998) 100 A Crim R 408 in which Angel J quoted the judgment of McCarthy J in Melser: `... The right to protest against political decisions, is now accepted as a fundamental human right in any modern society which deserves to be called democratic ... the right of protest, in particular, if exercised without restraint, may interfere with other people's rights of privacy and freedom from molestation. ... Freedom of behaviour ... is (not) absolute. The purposes of a democratic society are only made practicable by accepting some limitations on absolute individual freedoms. ... This ... is ... elementary.'

[4]

[21] In particular the Magistrate noted the discussion in Watson concerning the relevance of the fact that the conduct in question which was alleged to be disorderly was, or was part of, a political protest. That clearly is a circumstance relevant to the decision whether the conduct complained of in a prosecution under s 7(1)(e) is disorderly as that term has been explained in the authorities.

[5]

[22] Having referred to the relevant legal principle, and the relevance of the point just mentioned, the Magistrate concluded from his review of the evidence that the charge had been made out.

[6]

[23] The applicant's contention that his conduct could not have been disorderly because it was an expression of political opinion or participation in a criticism of Government debate cannot be accepted. His motive for his conduct and the characterisation of it as `political' are both irrelevant. Acts which the law makes criminal do not cease to have that character by reason that they are the expression of political opinion. The point is too obvious to need explanation. Where it otherwise the murder of a Prime Minister whose policies one despised would be a constitutionally protected act of political debate.

[7]

[24] The District Court judge took the same approach. Having reviewed the evidence and referred to some particular portions of it his Honour said:

[8]

`I have canvassed some portions of the prosecution evidence concerning the presence of members of the public and children because it was against the backdrop of such evidence that the Magistrate ... approached the question of whether the (applicant's) actions in lighting the flag amounted to disorderly conduct. It was plainly open for the Magistrate to do so on the evidence. Far from being a finding which was unsupported ... it seems ... to have been quite compelling. I was provided with an extensive summary of the evidence ... which ... contains reference to a large volume of other evidence to similar effect.

[9]

The concept of disorderly behaviour is in every case a matter of degree depending upon the relevant time, place and circumstances. The police have made no move to interfere with the (applicant) while he made anti-Government political statements. While the statements may have been unpalatable to some of the patrons of the event there is no suggestion that feelings had become so inflamed as to render likely a breach of the peace. Actually, there seems to have been some merriment at the failure of the (applicant) to light the flag at the first attempt. The objectionable feature of the conduct had very little to do with its political significance. It related to the lighting of a large piece of synthetic material to which petrol had been added in close proximity to larger numbers of people including young children. The circumstances were such as to arouse the apprehension of parents for the safety of their children.

[10]

The Magistrate described the conduct of the (applicant) as "provocative, disruptive and disturbing, and ... as a substantial breach of decorum". However he went on to describe the crucial and significant facts as being the actual decision by the (applicant) to burn a flag of that size, with the aid of an accelerant at that particular time and place ... and the adverse effect his behaviour appeared to have on some of the public present.'

[11]

[25] The applicant's submissions as they relate to the conviction of a charge of behaving in a disorderly manner are without substance. They appear to misunderstand the law. It is apparent that the Magistrate paid careful attention to the evidence and applied to it the correct legal principles. In particular the Magistrate took account of the circumstance that the applicant was protesting against a policy of the Commonwealth Government. Having taken that circumstance into account, together with the other relevant circumstances, his Worship was convinced beyond reasonable doubt that the applicant's behaviour was disorderly. There was no error in his Worship's approach. The District Court judge reached the same conclusion having reviewed the evidence and having been satisfied that the correct legal principles had been identified and applied.

[12]

[26] The applicant's complaints that he was arrested unlawfully and was therefore entitled to resist and behaved reasonably in striking Constable Marinov and damaging the police car can be shortly disposed of.

[13]

(a) The police officers considered the conduct disorderly only when the secondary fire commenced;

[14]

(b) The applicant has been found not to be criminally responsible for the second fire; therefore

[15]

(c) It follows, so the applicant submits, that he has been effectively acquitted of the act which was said to base the criminal liability and authorise the arrest;

[16]

(d) Therefore, it is submitted by the applicant, that the arrest was unlawful and the applicant's resistance, was lawful.

[17]

[28] The submissions by the applicant fundamentally misunderstand the law. It is not the law that an arrest is only lawful if ultimately the person arrested is found to be guilty of the alleged offence which was the basis of the arrest.

[18]

[29] Section 198 of the Police Powers and Responsibilities Act 2000 (Qld) provides:

[19]

(1) It is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons -

[20]

(a) to prevent the continuation or repetition of an offence or the commission of another offence;

[21]

(g) to preserve the safety or welfare of any person including the person arrested;

[22]

(a) Gives a power to arrest dependent upon a police officer forming the belief prescribed by the section;

[23]

(b) The existence of the power to arrest is distinct and independent from any ultimate determination of guilt;

[24]

(c) Provided the police officer holds the requisite belief and the power of arrest therefore arises, the arrest is lawful notwithstanding that there is ultimately an acquittal of the defendant of the offence for which he was arrested and the arrest is lawful even if the police officer's belief was founded upon some mistake of fact or law.

[25]

[31] The arresting officer Kinbacher had clearly formed the view:

[26]

(a) That the applicant had committed the offence of disorderly conduct;

[27]

that state of mind was reasonably held given the applicant's conduct up to that point in time.

[28]

[32] On that basis the arrest was lawful. It was not rendered unlawful by the Magistrate ultimately having a reasonable doubt as to the applicant's criminal liability for the secondary fire. Indeed, even if he was acquitted of the charge of disorderly conduct the arrest was still lawful and he would be guilty of the other charges.

[29]

[33] There is no reason to doubt the correctness of the applicant's convictions or that the appeal to the District Court was properly dismissed. The application for leave to appeal raises no point of law for determination. I would refuse the application with costs to be assessed.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (29 paragraphs)

Parties

Cases Cited (3)