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FILE NO/S: CA No 278 of 2006 / DC No 4404 of 2005

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 23 February 2007

DELIVERED AT: Brisbane

HEARING DATE: 13 February 2007

JUDGES: de Jersey CJ, Jerrard JA and Holmes JA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. The applicant be granted leave to appeal in respect of the decision of the District Court so far as it upheld the conviction on the charge of obstructing a police officer in the performance of his duty / 2. The appeal be allowed, the conviction on that charge quashed, and the penalty imposed in respect of that conviction set aside / 3. There be no order as to costs

CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - OTHER MATTERS - where the applicant was protesting adjacent to a busy road – where the applicant was convicted of obstructing police – where the applicant was found in possession of a knife and convicted – where the arresting officer failed to particularise the grounds for arrest – whether the convictions should be upheld / Police Powers and Responsibilities Act 2000 (Qld), s 444(1) / Weapons Act 1990 (Qld), s 51(1) / Coleman v Power (2004) 220 CLR 1, distinguished

COUNSEL: The applicant appeared on his own behalf / D MacKenzie for the respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: This is an application brought under s 118 of the District Court Act 1967 (Qld) for leave to appeal from a decision of the District Court given on an appeal under s 222 of the Justices Act 1886 (Qld).

On 31 October 2005, the applicant was convicted in the Magistrates Court, following a hearing, of these offences committed on 29 April 2005 at Capalaba: committing a public nuisance offence; physically possessing a knife in a public place without reasonable excuse; and obstructing a police officer, Sgt Thomson, in the performance of his duty. The Magistrate imposed a global fine of $300 and did not record convictions.

The applicant represented himself before the Magistrate, and before the District Court Judge, who said in his reasons for judgment that he had therefore carefully reconsidered all of the material before the Magistrate. The Judge upheld the appeal in relation to the first conviction, for the commission of a public nuisance offence, and dismissed the appeal in respect of the other offences, the possession of the knife and obstructing the police officer. His Honour varied the penalty to a $50 fine in respect of each of those two latter convictions.

The public nuisance charge arose from the applicant’s displaying signs on a footpath at Capalaba. Their slogans were offensive to the police service, the Crime and Misconduct Commission and others. The evidence before the Magistrate was that the applicant was seeking to attract the attention of passers by, including motorists, and that his actions caused at least one motorist to swerve.

The learned Judge upheld the appeal against the conviction on that charge on the basis that it had never, either by the officer or in the terms of the charge or at the hearing before the Magistrate, been adequately particularized. Although no request for particulars was made, it was presumably considered significant that the applicant was unrepresented. The Judge observed: “The appellant should however not take any comfort from my decision to the effect that somehow his behaviour was justified. In similar circumstances he could be rightly convicted for like behaviour.”

At the time, the applicant had possession of a knife with a 10 centimetre blade activated by a button on the handle. Section 51(1) of the Weapons Act 1990 (Qld) provides that a person must not physically possess a knife in a public place unless the person has a reasonable excuse. Sergeant Thomson gave the applicant an opportunity to explain his possession of the knife, but the applicant failed to do so. The applicant’s explanation at the Magistrates Court hearing was that he was a musician, and that he used the knife to dig holes for the display of his signs. The Magistrate found that neither of those explanations provided any reasonable excuse. The District Court Judge upheld that view, from which, consistently with principle, this Court could not differ.

The obstruction charge arose in the following circumstances. Upon his arresting the applicant on the public nuisance offence charge, Sgt Thomson conducted a pat down search. When he asked for an explanation about the knife, the applicant said it was none of the police officer’s business, whereupon the applicant started pulling away from Sgt Thomson, who was then intending to take possession of the applicant’s tape recorder. Sergeant Thomson held the applicant by the upper arm. The Magistrate found that the applicant thereby interfered briefly with the performance by the officer of his duty in the pat down search and confiscation of belongings, noting that it was an offence at the lower end of the scale.

Section 443 of the Police Powers and Responsibilities Act 2000 (Qld) authorizes a police officer to carry out a search of a person who has been “lawfully arrested”, and to seize certain items. The applicant was lawfully arrested if Sgt Thomson, in arresting him, reasonably suspected he had committed the public nuisance offence, and arresting him was reasonably necessary for one or more of a number of reasons, including to prevent the repetition of the offence or the commission of another (s 365).

The District Court Judge upheld that conviction.

The applicant appeared before this Court without legal representation. He principally contends that his arrest for the public nuisance offence was unlawful, and that what he called the “add on charges” therefore had to fail. He relied on Coleman v Power (2004) 220 CLR 1, where the majority of Justices held that the appellant’s particular conduct did not amount to an offence under s 7(1)(d) of the Vagrants Gaming and Other Offences Act 1931 (Qld).

The reason for the quashing of this conviction was not that the applicant’s conduct did not amount to an offence under s 6 of the Summary Offences Act 2005 (Qld), but because the offence charged had not been properly particularized. The quashing of the conviction did not mean that the arrest of the applicant on that charge was consequently unlawful.

In Coleman, the majority of the Justices did not hold the statutory provision unconstitutional. McHugh J dissented on that point, saying (p 43):

“To seek to validate an arrest made in respect of an offence that is invalid under the Constitution is as offensive to the Constitution as the law that purported to create the offence.”

It may be that that sort of observation fed the applicant’s contention in this case, to the effect that all that followed the arrest fell to be condemned. But as I have said, the quashing of the conviction for the public nuisance offence did not in this case deem unlawful the arrest in respect of it.

There was however no direct evidence from Sgt Thomson of his having formed the requisite “reasonable suspicion” in arresting the applicant, or evidence bearing on whether an arrest was “reasonably necessary” in terms of s 365 (then s 198) of the Police Powers and Responsibilities Act. To establish Sgt Thomson’s lawful entitlement to carry out the search which led to the obstruction, the prosecution needed to establish the lawfulness of the preceding arrest, and that depended on satisfying the requirements of s 365. That was not done.

Attention was first drawn to this deficiency on the hearing of the instant application. The applicant did not raise the point in the Magistrates Court or in the District Court, where his focus rested solely on the suggested application of Coleman v Power. Ordinarily, the emergence of such a point for the first time upon an application for leave to appeal would not justify a grant of leave, because had the point been raised at the original hearing, it could possibly have been rectified by calling additional oral evidence. But it is again significant that the applicant has at all stages been without legal representation. In my view, the interests of justice in those circumstances warrant quashing the conviction on the obstruction charge, on the basis an element of that offence was not established.

On the other hand, establishing the Weapons Act charge did not depend upon proving lawful any precedent arrest (see ss 29, 30 Police Powers and Responsibilities Act). That conviction must stand.

I would order:

that the applicant be granted leave to appeal in respect of the decision of the District Court so far as it upheld the conviction on the charge of obstructing a police officer in the performance of his duty;

that the appeal be allowed, the conviction on that charge quashed, and the penalty imposed in respect of that conviction set aside;

that there be no order as to costs.

JERRARD JA: This proceeding is the hearing of an application filed 28 September 2006 for an extension of time, within which to file an application for leave to appeal from a judgment of the District Court in Brisbane given on 31 August 2006. The decision sought to be appealed was a decision on an appeal under s 222 of the Justices Act 1886 (Qld), from a decision of the Magistrates Court in Cleveland given on 31 October 2005. Leave to appeal that decision is necessary because of s 118(3) of the District Court Act 1967 (Qld). The applicant Raymond Courtney filed his application for leave to appeal from the judgment of the District Court on 28 September 2006, and needs only that leave, not an extension of time.

The proceedings heard in the Cleveland Magistrates Court were charges against Mr Courtney brought by the respondent to his application in this Court, Queensland Police Sergeant Michael Thomson. Those charges alleged an offence against what was then numbered as s 444(1)¹ of the Police Powers and Responsibilities Act 2000 (Qld), being a charge that on 29 April 2005 at Capalaba Mr Courtney had obstructed Sergeant Thomson in the performance of that officer’s duties; an offence allegedly committed that same date against s 51(1) of the Weapons Act 1990 (Qld), namely that Mr Courtney without reasonable excuse physically possessed a knife in a public place namely Moreton Bay Road, Capalaba; an offence against s 6 of the Summary Offences Act 2005 (Qld), namely that on 29 April 2005 at Capalaba Mr Courtney committed a public nuisance offence; and an offence against s 126B of the Traffic Regulation 1962,² namely carrying upon a road a placard constructed of rigid material when not the holder of a permit authorising that conduct.

The learned Magistrate convicted Mr Courtney of the first three offences, and dismissed the charge of carrying the placard upon a road. Mr Courtney appealed each of those convictions. On the appeal to the District Court, the learned District Court judge allowed the appeal against the conviction for committing a public nuisance offence, and dismissed the appeals against conviction on charges under the Weapons Act and Police Powers and Responsibilities Act. The judge also set aside the fines imposed by the Magistrate, and fined Mr Courtney $50 on each of the two charges on which he remained convicted, allowing one month to pay.

Mr Courtney seeks leave to appeal the orders dismissing the appeals against those two convictions. The essence of his argument is that he continues to contend that his arrest was unlawful; if so, he says that on the evidence led against him, he did not obstruct Sergeant Thomson when the latter was performing his duty, and he ought not to have been searched and found in possession of a knife in a public place. I add that Mr Courtney has represented himself at all times.

There was very little dispute about the accuracy of the evidence led before the Magistrate. That was that at about 11:00 am on 29 April 2005 Sergeant Thomson and Senior Constable Emerson were on duty in the Capalaba police division, and when proceeding along Moreton Bay Road at Capalaba saw Mr Courtney on the side of the road on the footpath holding a sign. It had “Police” written across the top, and down the side an acronym of S-C-U-M, reading:

“Seriously Corrupt Uneducated Morons”.³

Mr Courtney was standing at a very busy intersection; Sergeant Thomson’s evidence was that he saw Mr Courtney:

“...appeared to be moving out or motioning to – to move out in front of traffic. The traffic was heavy as it always is at that time. I saw that vehicles were slowing down to – to look at what he was doing. And there appeared to be a near collision, so there was – for a term it was a case of mayhem being created by him at that location by his actions.”⁴

The police did not stop, because they were proceeding to another job at that time. Sergeant Thomson’s evidence was that as they drove by Mr Courtney raised his arm in a Nazi-style salute and yelled out “Seig heil”.⁵ Sergeant Thomson swore that he felt very insulted by that.

Sergeant Thomson’s evidence continued, that just after midday he and Constable Emerson received information from Capalaba Police Station in relation to Mr Courtney, and that as a result of that information they went back to that location. They saw Mr Courtney walking along Moreton Bay Road on the footpath, (apparently no longer “demonstrating”), and they pulled their vehicle up along side him. It appears the police alighted from their vehicle, and what was next said seems to have been tape recorded by both Mr Courtney and Sergeant Thomson. This was that Sergeant Thomson told Mr Courtney:⁶

“I have two complaints about you interfering with persons in their public passage today. Consequently I am arresting you for public nuisance.”

Section 6 of the Summary Offences Act 2005, relevantly provides:

“6 Public nuisance

A person must not commit a public nuisance offence.

Maximum penalty – 10 penalty units or 6 months imprisonment.

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.”

Sergeant Thomson’s words of arrest reflect some of the provisions of this section. The appeal record does not make clear quite what happened next, but it included that in response to questions, Mr Courtney produced a pocket knife which he had in his possession, (that was the basis of the Weapons Act charge), but he resisted Sergeant Thomson’s preliminary endeavours to take possession of Mr Courtney’s tape recorder (that forms the basis of the charge of obstructing). Sergeant Thomson swore that he had asked for the tape recorder because, as part of police procedure followed by Sergeant Thomson, “We take all possessions from persons when they’re in our custody”.⁷ Mr Courtney was concerned that the conversation would not be taped if he relinquished possession of his recorder, apparently unaware that Sergeant Thomson was also recording it.

Constable Emerson gave evidence of observing Mr Courtney pulling away from Sergeant Thomson, when the latter was attempting to take possession of a knapsack that Mr Courtney was carrying; Constable Emerson’s evidence was otherwise rather general. Mr Courtney did not challenge by cross-examination the evidence of either police officer, and agreed with the learned Magistrate that Her Honour could accept what each of those witnesses said as the truth.

The prosecution also called a Sandra Bond, who described driving down the relevant road “at the end of April”⁸, and seeing a person standing on the corner with a placard that read “ALP Sucks Cops”, and being very offended. She also described how the man had been “Half on the footpath and half on the road”, frightening her, because she thought that she was going to hit him; she swerved and then carried on. When she got home she telephoned the police.

By implication, she was one of the two people to whom Sergeant Thomson was referring when he spoke of two complaints about Mr Courtney’s interfering with the public passage of other people, resulting in Mr Courtney’s arrest. At the beginning of the proceedings in the Cleveland Magistrates Court the prosecutor informed the Magistrate that a second non-police witness, whom the prosecution considered to be required, was ill; ultimately no other witnesses were called. In all likelihood that other witness was the second complainant whose complaint was relayed in a very general way to Mr Courtney by Sergeant Thomson.

However, the prosecution did not lead evidence of the contents of the complaints on which Sergeant Thomson acted when arresting Mr Courtney. The contents of those would have been admissible, not as evidence of their truth, but as evidence of the grounds on which Mr Thomson made the arrest. Section 198 of the Police Powers and Responsibilities Act 2000⁹ relevantly provided that it is lawful for a police officer, without warrant, to arrest an adult if the police officer reasonably suspects the adult has committed or is committing an offence, and if it is reasonably necessary (to make the arrest) for 1 or more of the specified reasons, which include to prevent the continuation or repetition of an offence. It is likely that the arrest was made to prevent Mr Courtney continuing to commit what Sergeant Thomson suspected or believed were public nuisance offences; whether Sergeant Thomson reasonably suspected such offences had been committed would depend on the terms of the complaints relayed to him. Although evidence of that, and of why an arrest was thought necessary to prevent continuation of the offence, would have been admissible to establish the grounds and legality of the arrest, it was not led.

The Magistrate, when convicting of the public nuisance offence, described the evidence of the motorist, and Mr Courtney’s evidence that he did not jump in front of any cars, and also described the evidence of Sergeant Thomson. The Magistrate concluded:

“I accept the evidence that the defendant was standing near or against a power pole at the intersection of Moreton Bay Road and Finucane Road. That he was carrying a sign or signs calculated to attract attention from passers-by, that he motioned to move in front of traffic, thereby causing vehicles to slow. Further, that the signs attracted the attention of the witness and which signs, as it happens, the passing motorists found offensive; that upon her approach the defendant moved towards her in such a fashion that she felt compelled to swerve away from him for fear of striking him with her vehicle and that her action generated reactive action by the following driver.”

The learned Magistrate accepted that Mr Courtney did not actually jump into the road or into the path of traffic. The Magistrate accordingly found Mr Courtney not guilty of the charge of carrying his sign on the road. The learned Magistrate accepted the evidence that Mr Courtney was uncooperative with the police officer who undertook the search of him in confiscation of his possession, and that Mr Courtney was upset and agitated, because he believed that his arrest was unlawful.

The Magistrate went on to accept that the actions of Mr Courtney constituted disorderly behaviour, and that he had thereby interfered with “her” peaceful passage through a public place. (The Magistrate was apparently referring there to Ms Bond.) The learned Magistrate specified that it was not the contents of the signs which constituted the disorderly conduct, but Mr Courtney’s activities while displaying them.¹⁰ Accordingly he was found guilty of that offence.

On appeal that conviction was set aside, because the learned District Court judge considered that the Magistrate had found an offence established by a course of conduct by Mr Courtney which had persisted throughout the time from when the police passed by to when Ms Bond came past, a period of between one and two hours. The learned judge thought that the Magistrate had impermissibly presumed that the same conduct had continued throughout that one to two hour period.

Sergeant Thomson has not appealed against that conclusion, and it is unnecessary on this appeal to say any more about it. Mr Courtney argues that because that conviction was quashed, so too should be his conviction for obstructing Sergeant Thomson, since it has not been established that Mr Courtney had committed the offence for which he was arrested. Therefore, he argues, it cannot be established that Sergeant Thomson was acting in the execution of his duty in arresting Mr Courtney, and when conducting a search on the basis of that arrest.

The important points are whether Sergeant Thomson reasonably suspected Mr Courtney had committed an offence when he arrested him, and whether, for example, he made the arrest to prevent the offence being continued. If Sergeant Thomson did so reasonably suspect, and make an arrest for that reason, the arrest would not be rendered unlawful because the charge on which Mr Courtney was arrested was later dismissed by a court. The lawfulness of the arrest does not depend on whether Mr Courtney was proven to have committed an offence, but whether Sergeant Thomson reasonably suspected Mr Courtney had. As to that, as described, the prosecution led no evidence.

The learned District Court judge remarked upon the unsatisfactory nature of the complaint against Mr Courtney, namely that he had committed a public nuisance offence without any particulars as whether that was because of either disorderly, or offensive, or threatening, or violent behaviour; and without any particulars of how that interfered with any other person’s peaceful passage through a public place. The complete absence of particulars would have made cross-examination both risky and difficult. Mr Courtney did not attempt any cross-examination of the police.

I respectfully consider the learned judge ought to have concluded that the prosecution had not established before the Magistrate that the arrest was lawful. Instead, the learned judge considered it was sufficient that the Magistrate accepted the evidence of Sergeant Thomson that Mr Courtney pulled away from them during the search, as Mr Courtney had admitted to the learned judge that he had done. But what mattered was whether the prosecution had established a lawful arrest. Without that, the police were not entitled to detain and search him, and he did not obstruct them in the execution of their duty in opposing a search. On that point, the judge simply held:

“So far as concerns the Weapons Act charge, the police officers were entitled to arrest the defendant and for that purpose to search him.”

I agree with the judge that no other grounds were suggested for a lawful search, other than prior lawful arrest. Absent evidence of a lawful arrest, the prosecution did not establish that Sergeant Thomson was obstructed in the performance of a lawful duty. Mr Courtney did not argue in any court that the evidence did not establish a lawful arrest, but he is self-represented and he did argue – for other reasons to do with the decision in Coleman v Power – that the arrest was unlawful. Mr MacKenzie, for the respondent, agreed that the prosecution was obliged to establish the lawfulness of the arrest. I would allow the appeal by the self-represented litigant against the dismissal of the conviction for obstructing Sergeant Thomson.

The Weapons Act charge

Section 51(1) of the Weapons Act 1990 provides that a person must not physically possess a knife in a public place or a school, unless the person has a reasonable excuse. Section 51(2) provides reasonable excuses, which includes possession of a knife for use for a lawful purpose. The examples given in the statute include the carrying of a pen-knife or Swiss-army knife for use of its normal utility purposes. Mr Courtney’s pocket knife found in his possession had a push down blade of about 10cm in length, and the Magistrate correctly held that the onus lay on Mr Courtney to show a reasonable excuse, which the Magistrate said the police had given him the opportunity to do, and which he had refused to do. The Magistrate further recorded that in court Mr Courtney had explained he was a musician, and used a knife for all sorts of things; the Magistrate was not satisfied that a reasonable excuse had been established, and convicted him.

Mr Courtney appears to accept that he failed to establish a reasonable excuse in the circumstances, and his argument is really that he should not have been searched, and that a discretion should have been exercised to exclude the result of the search from evidence. But the evidence was that Mr Courtney had not objected to producing his knife to the police, whereas he did protest the removal of his tape recorder from his possession. Since ss 27 and 28 of the Police Powers and Responsibilities Act 2000¹¹ authorised a search without a warrant or an earlier arrest if a police officer reasonably suspects a person has a knife, that offence, and proof of it, is different to the other charges. The simple fact is that Mr Courtney should not have been in possession of that knife without a reasonable excuse. I would dismiss the application for leave to appeal against the decision of the District Court dismissing that conviction. Mr Courtney was deprived by the decision of the District Court, and by the error of the Magistrate, of the opportunity to argue for a discretionary exclusion of the evidence about his possession of the knife, but the conduct of the police generally was courteous to Mr Courtney, and gave insufficient grounds to warrant exclusion of the evidence of the commission of that Weapons Act offence.

In the result I would allow the application for leave to appeal, set aside the conviction and the fine for an offence against s 444(1) of the Police Powers and Responsibilities Act 2000, but dismiss the appeal against the conviction for breach of s 51(1) of the Weapons Act 1990.

Mr Courtney was self represented. I would not make any order as to costs of the appeal.

HOLMES JA: I have had the advantage of reading the reasons for judgment of the Chief Justice and agree with him that the decision in Coleman v Power¹² had no bearing on the lawfulness of the arrest of the applicant in this case. I agree, too, that there was an absence of evidence as to reasonable suspicion or reasonable necessity under s 365(1) of the Police Powers and Responsibilities Act 2000 (Qld). That sub-section is in these terms:

“365 Arrest without warrant

(1) It is lawful for a police officer, without warrant, to arrest an adult 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 –

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

(b) to make inquiries to establish the person’s identity;

(c) to ensure the person’s appearance before a court;

(d) to obtain or preserve evidence relating to the offence;

(e) to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;

(f) to prevent the fabrication of evidence;

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

(h) to prevent a person fleeing from a police officer or the location of an offence;

(i) because the offence is an offence against section 790 or 791;

(j) because the offence is an offence against the Domestic and Family Violence Protection Act 1989, section 80;

(k) because of the nature and seriousness of the offence;

(l) because the offence is-

(i) an offence against the Corrective Services Act 2006, section 135(4); or

(ii) an offence to which the Corrective Services Act 2006, section 136 applies.”

(Other sub-sections of s 365, dealing with persons suspected of indictable offences and juveniles, have no relevance here.)

However, I would go a little further than the Chief Justice: not only did the prosecution fail to establish those matters, but the evidence of Sergeant Thomson strongly suggested that none of the reasons for arrest in s 365(1) existed. Sergeant Thomson’s account was that he and his partner had seen the applicant with his signs, causing some difficulties with the traffic flow at the intersection of Finucane Road and Old Cleveland Road. They did not stop, because they were on their way to a more important job, and Sergeant Thomson knew Mr Courtney and where he could find him to follow the matter up. When they returned about an hour later, they saw the applicant walking along the footpath carrying his signs: he was walking in the direction of his residence. According to Sergeant Thomson, having located Mr Courtney, he “advised him he was under arrest for public nuisance”.

It does not appear from that description of the applicant leaving the scene that there was any reason to fear that he was about to commit or continue any offence. Nor is there any suggestion that at the stage of arrest there was reason to fear Mr Courtney could not be identified - indeed, Sergeant Thomson already knew him and where to find him - or that he would interfere with evidence or witnesses, run away, or not appear at Court. Certainly there was nothing about “the nature and seriousness” of the offence itself which could possibly require arrest. In my view, the evidence not only failed to establish that the arrest was lawful; it rather suggested that it was not. It followed that, in attempting to search the applicant and remove his possessions, Sergeant Thomson was not acting in the performance of his duties, an element of the offence of obstruction. I agree therefore with the Chief Justice that the conviction on the obstruction charge ought to be quashed.

It was not an element of the Weapons Act (Qld) offence that the police officer, in locating the knife, be acting in the exercise of his duties. Indeed, its existence seems to have come to light as a result of the applicant’s having volunteered that he possessed it, so there seems to be no complicating issue of an unlawful search. Accordingly I agree that that conviction should stand. I concur with the orders proposed by the Chief Justice.