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[2009] TASSC 66
Supreme Court of Tasmania
2009-08-20
Crawford CJ, Blow JJ, Evans J
Original judgment source is linked above.
CITATION: Nilsson v McDonald [2009] TASSC 66
APPEALED FROM: Nilsson v McDonald [2009] TASSC 1
Police - Rights, powers and duties - Other powers and duties - Prevention of breach of peace - Tasmanian statutory power to direct person to leave public place - Meaning of "breach of the peace" - Noisy visitor in hospital.
R v Howell [1982] QB 416, considered.
R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458, discussed.
Judgment Number: [2009] TASSC 66
1 Subject to some additional comments I wish to make, I agree with the reasons for judgment of Blow J and the orders he proposes. I concur with him that the appeal should be upheld on the basis that the learned judge should have concluded that the learned magistrate erred in being satisfied beyond reasonable doubt that Constable Pajak believed on reasonable grounds that the appellant was likely to commit a breach of the peace, or that the appellant had already committed a breach of the peace.
2 The evidence of Constable Pajak was that the appellant had been very argumentative and belligerent and had been shouting at the top of her voice, talking over everyone else. She was very loud and in a hospital ward containing sick people. The officer described her further as being very agitated and as not being prepared to listen to what the officer had to say. It was Constable Pajak's evidence that the appellant had committed a breach of the peace, that she was provoking a breach of the peace, and that she was likely to commit a breach of the peace. However, there was no evidence that Constable Pajak had witnessed any conduct in the form of violence to a person or property, nor did she give evidence that she believed that it was likely there would be violence or harm to a person or property, or that any person was or would be put in fear of it. It is for that reason that the appeal should succeed.
3 As pointed out by Blow J, what constitutes a breach of the peace for the purposes of the common law in the United Kingdom largely appears to have been settled by the Court of Appeal in R v Howell [1982] QB 416. At 426 and 427, the court held that there cannot be a breach of the peace unless there has been an act done, or threatened to be done, which either actually harms a person, or in his presence, his property, or is likely to cause such harm, or which puts someone in fear of such harm being done.
4 The facts of Howell's case are sufficiently close to those in this case to warrant comparison. Police were called to a house where a very noisy party was in progress in the early hours of the morning, much to the distress of neighbours. Many of the party-goers went into the street and caused an uproar. In issue was the right of police to arrest for a breach of the peace. The right was upheld by the court because the police officers reasonably believed that violence was a likely outcome.
5 Howell has been applied at first instance in this jurisdiction. Innes v Weate [1984] Tas R 14 and R v Holmes (1993) 2 Tas R 232 (unreported B5/1993 and [1993] TASSC 5). I have applied it myself when instructing juries in criminal cases. It has been applied elsewhere in this country. See for example, Bhattacharya v New South Wales [2003] NSWSC 261 at par38, New South Wales v Kuru [2007] NSWCA 141 per Ipp JA at par149[1], and Tomarchio v Pocock [2002] WASCA 156 at par54.
6 In Percy v Director of Public Prosecutions (1995) 1 WLR 1382, the Queens Bench Division was concerned with a situation where a protester, although acting peacefully while protesting, was likely to provoke violence by others as a natural consequence of what she was doing. The court applied Howell and accepted that a breach of the peace occurs where the violence, or threatened violence, is not that of the offender but of others likely to be provoked by the offender's conduct. In Edwards v Raabe [2000] VSC 471; (2000) 117 A Crim R 191 at 197 - 200, Smith J applied that principle.
7 It was suggested by Marks J in Nicholson v Avon [1991] VicRp 15; [1991] 1 VR 212 at 221, that the definition in Howell and other cases may not be exhaustive. See also New South Wales v Tyszyk [2008] NSWCA 107 per Campbell JA at par101. Possibly that is so. However, I am unaware of any authority in which it was held that a breach of the peace can occur in circumstances where the person concerned is merely argumentative or making excessive noise, without a consequent likelihood of violence or harm to any person or property, or of persons being put in fear of such violence or harm.
8 In other words, "peace", in the expression "breach of the peace", does not mean quietness.
9 I have had the benefit of reading the reasons for judgment prepared by Blow J and agree with him, save for his conclusion in relation to ground 6 and incidental matters which I now address. Ground 6 of the appeal relates to the learned primary judge's rejection of ground 6 of the notice to review which contended that there had not been a sufficient basis in the evidence for the learned magistrate's finding that Constable Pajak believed that the defendant had committed a breach of the peace and had reasonable grounds for so believing.
10 The appellant was charged with failing to comply with the direction of a police officer in breach of the Police Offences Act 1935, s15B(2). In the transcript of the hearing, to which I will refer, the appellant is referred to as the defendant, so, hereafter, I will do likewise. At the outset of the hearing before the learned magistrate, the particulars to the charge were as follows, save for the portion that is in italics:
"You are charged with on the 15th June, 2007 at the Royal Hobart Hospital a public place at Hobart in Tasmania having been directed under the provisions of subsection 1, to leave that place and not return for a specified period of not less than 4 hours, by Constable PAJAK a police officer who had reasonable grounds for believing you had committed or was likely to commit an offence, and/or has committed or is likely to commit a breach of the peace and you unlawfully failed to comply with that direction."
11 At the conclusion of the evidence, the particulars of the complaint were amended by the inclusion of the words in italics.
12 The statutory authority relied on by Constable Pajak for giving the direction in issue was the Police Offences Act, s15B(1), which relevantly provides:
"(1) A police officer may direct a person in a public place to leave that place and not return for a specified period of not less than 4 hours if the police officer believes on reasonable grounds that the person -
(a) has committed or is likely to commit an offence; or
(d) has committed or is likely to commit a breach of the peace."
Constable Pajak was a police officer, her direction to the defendant was given in a public place and it was a direction that complied with s15B(1). Accordingly, the core issue for the learned magistrate's attention was whether Constable Pajak believed on reasonable grounds that the defendant:
•
had committed or was likely to commit an offence (a trespass); or
•
had committed or was likely to commit a breach of the peace.
13 A person who, without reasonable or lawful excuse, remains on premises without the consent of the owner, occupier or person in charge of the premises, is a trespasser, Police Offences Act, s14B(1). Generally conduct amounting to a breach of the peace will involve actual or likely harm to a person or property. The full scope of the expression "breach of the peace" is however not settled; The Laws of Australia 11.1[14]. Somewhat surprisingly, given the antiquity of the concept of a "breach of the peace" there are not a lot of authorities about it; Bhattacharya v State of New South Wales & Anor [2003] NSWSC 261, par38. As to the scope of the term, there is a divergence between the decisions in R v Howell (1981) 73 Cr App R 31 and R v Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board [1982] 1 QB 458 on the question of whether an ingredient of the concept is actual or likely harm to a person or a person's property. The former decision is to the effect that actual or likely harm is an ingredient of a breach of the peace, but the latter decision does not refer to this ingredient. It may be that this divergence is of no practical significance, as the sort of conduct that commonly attracts attention as being a breach of the peace is also the sort of conduct that is likely to result in harm to a person or a person's property. For example, the conduct that was the subject of the decision in R v Chief Constable of Devon and Cornwall (supra) was, in my view, likely to provoke a physical altercation and personal harm. An approach along these lines was taken to the conduct under consideration in Nicholson v Avon [1991] VicRp 15; [1991] 1 VR 212, and Van Bao Nguyen [2002] NTSC 38; (2002) 130 A Crim R 447.
14 In Kuru v New South Wales [2009] HCA 23; (2008) 238 CLR 1, Gleeson CJ, Gummow, Kirby and Hayne JJ, at par50, recognised the difficulty of deciding what constitutes an actual or threatened breach of the peace, and cited as authority Addison v Chief Constable of West Midlands Police [2004] 1 WLR 29 at 31 - 32. I understand this to be a reference to the divergence mentioned between the decisions in R v Howell and R v Chief Constable of Devon and Cornwall, as at pages 30 and 31 of Addison, the different views expressed in those decisions are set out. For present purposes I do not find it necessary to decide whether actual or likely harm to a person or property is a necessary ingredient of a breach of the peace. I deal with this appeal on the basis that in the circumstances of this case, in order to establish a breach of the peace it was necessary to establish actual or likely personal harm.
15 The assessment of whether Constable Pajak believed on reasonable grounds that the defendant had trespassed or had, or was likely to, commit a breach of the peace, does not involve an expectation that she was exercising a fine judgment. She did not have time to hold an inquiry or conduct an investigation. She was not required to go into the rights or wrongs of the matter at that stage; Addison v Chief Constable of West Midlands Police (supra) at 31. In authorities dealing with the requirement that a police officer has reasonable grounds for suspecting that a person has committed an offence before arresting that person, it has been held that this requirement is very limited. Before effecting an arrest a police officer is not required to have anything like a prima facie case for conviction; Dumbell v Roberts [1944] All ER 327, Scott LJ at 329. The officer's belief can take into account matters that could not be put into evidence; Hussien v Chong Fook Kam [1970] AC 942 at 949. See also Williams v R [1986] HCA 88; (1986) 161 CLR 278 at 300. It is not necessary that a person who effects an arrest has a legally precise understanding of the offence that the arrested person is suspected of committing. This is best illustrated by Rex v Ford [1730] EngR 63; (1817) Russ & Ry 328, 168 ER 328. In that case the defendant was arrested for having a forged banknote in his possession. There was no such crime. It was submitted that for this reason the arrest was unlawful. Following the trial and conviction of the defendant, the Chief Barron reserved to the judges a number of questions, including the question of whether the arrest had been lawful. The judges were of the opinion that, although the charge on which the defendant had been taken into custody, having a forged note in his possession, without more, was defective, the defect was immaterial. They held that it was not necessary that the charge be described with the same accuracy as in an indictment; and that the charge must have been considered to have imputed to the defendant a guilty possession. This decision was relied on by Lord du Parcq in Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 at 604, where his Lordship said of the view that the charge must be specifically and precisely formulated without duplicity that this: "... view is contrary to authority and much too strict. If it were right, it would put great difficulties in the way not only of the police but of private persons who felt it to be their duty to make an arrest on suspicion. It is, however, manifestly contrary to what was decided by the judges in Rex v Ford ". In the same case, at 593, Lord Simonds said of the obligation of an arresting constable to inform the person arrested why he or she was being arrested:
" ... the arrested man is entitled to be told what is the act for which he is arrested. The 'charge' ultimately made will depend upon the view taken by the law of his act. In ninety-nine cases out of a hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary : for instance, if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing. This is I think, the fundamental principle, viz, that a man is entitled to know what, in the apt words of Lawrence LJ, are 'the facts which are said to constitute a crime on his part'."
16 The authorities referred to bear on the degree to which a police officer must have an understanding of the ingredients of an offence or proscribed conduct, such as a breach of the peace, before making an arrest, or, as in this case, giving a direction. They establish that so long as the police officer had a belief on reasonable grounds of facts which, if substantiated, would establish the offence or the proscribed conduct, it is not necessary that the police officer had a full understanding of each ingredient of the offence or proscribed conduct. On the evidence in this case, it is not clear whether Constable Pajak appreciated that in the circumstances of this case for there to be a breach of the peace, it was necessary that the defendant's conduct was likely to result in personal harm. However, to my mind this does not matter, so long as Constable Pajak did believe on reasonable grounds that a physical altercation that might involve personal harm was a likely consequence of the defendant's conduct.
17 In responding to questions about why she directed the defendant to leave the hospital, Constable Pajak, in substance, said that she did so in order to avoid another breach of the peace. Unfortunately this evidence drew attention away from the primary legal basis detailed in the complaint for Constable Pajak's authority to give that direction, which was the defendant's commission of, or likely commission of an offence (a trespass). Evidence of the defendant's breach of the peace or a likely breach of the peace became the focus of the learned magistrate's attention and his reasons for decision. The reasons are confusing and probably inadequate. It is not however necessary to set them out and address them, as their adequacy was not the subject of any ground of the notice to review dealt with by the learned primary judge. The ground in question, ground 6, was as follows:
"6 His Honour erred in finding, without sufficient basis in the admissible evidence, that Constable Pajak:
a believed that the defendant had committed a breach of the peace; and
b had reasonable grounds for holding such a belief."
The notice to review could only have succeeded on this ground if it covered both a breach of the peace and the likelihood of the defendant breaching the peace. For this reason it was appropriate to deal with the ground on the basis that it so contended, and this is what the learned primary judge did. Accordingly, the issues raised by the notice to review were whether the admissible evidence provided a sufficient basis for the learned magistrate's findings that Constable Pajak:
•
believed that the defendant had committed or was likely to commit a breach of the peace; and
•
had reasonable grounds for so believing.
Sufficiency of the evidence to support a finding that Constable Pajak believed that the defendant had committed or was likely to commit a breach of the peace
18 The following portions of Constable Pajak's evidence are sufficient to deal with this issue:
"Constable, what was the basis of the direction that you gave?.......Um, she had already committed several offences, the main being trespass. She'd refused to leave when the hospital staff had asked. She did tell me that she had no indication - or no - she was going to leave once police had told her but she wasn't satisfied that um hospital staff could tell her to leave. So on that basis I was - formed the opinion that she may commit another offence. There was also um issues in relation to breaches of the peace, um, the defendant was very argumentative, belligerent, and shouting at the top of her voice talking over everyone else, um - that was very loud in the ward um, it was obviously a ward containing a lot of um very sick people, and that we weren't going to tolerate her er committing any other breaches of the peace, it wasn't appropriate."
"... I was satisfied on my own observations that if she stayed there she was going to commit another offence, and er cause breaches of the peace."
"... in my observations ... the defendant, her behaviour um was provoking a breach of the peace. It was, in my opinion, unacceptable for her to be shouting and raising her voice and arguing in a - a ward of um the Ho - Hobart Hospital."
"... I didn't think it was necessary to arrest her for breaching the peace then and there, but I certainly saw that it was appropriate to give her a direction to leave the hospital and not return so that um further offences, or a breach of the peace, would be committed."
"HIS HONOUR: But she says at the end of the day she didn't ask her to leave because she thought there was a trespass she asked her to leave because there was a breach of the peace - or a potential for breach of the peace -
WITNESS: That's correct."
19 In the light of this and the other evidence there was ample justification for a finding that Constable Pajak believed that the defendant had committed a breach of the peace or was likely to breach the peace, and I am satisfied that the learned primary judge did not err in rejecting this aspect of the notice of review.
Sufficiency of the evidence to support a finding that Constable Pajak believed on reasonable grounds that the defendant had committed or was likely to commit a breach of the peace
20 In the course of announcing his reasons for decision, the learned magistrate read two different definitions for the term "breach of the peace", only one of which included the prospect of an outbreak of violence as an ingredient of that concept. It is not possible to discern with any certainty from the learned magistrate's reasons whether he was of the view that in the circumstances of this case, for there to be a breach of the peace, it was necessary that the defendant's conduct was likely to have provoked violence. Although this uncertainty contributes to the probable inadequacy of the reasons, for the purposes of this aspect of ground 6, it is of no consequence. The issue to be determined is whether the admissible evidence provided a sufficient basis for the learned magistrate's finding that Constable Pajak had reasonable grounds for believing that the defendant had committed or was likely to commit a breach of the peace. Within a short time of Constable Pajak's arrival at the hospital, she had reasonable grounds for believing that the defendant was trespassing, and that if she was not removed a breach of the peace was likely. As to trespassing, Constable Pajak was told by the hospital legal officer that she, the officer, had the authority to request the defendant to leave, but that the defendant had refused to do so. The defendant acknowledged that she had refused requests that she leave, but said she would go if directed to do so by Constable Pajak. The defendant was very argumentative and belligerent. Constable Pajak was aware that the previous day there had been an incident involving the defendant at the hospital which had resulted in the defendant being arrested and removed. Constable Pajak on several occasions told the defendant that if she did not leave she would be arrested as a trespasser. On the evidence it was clear (and this was not disputed by the defendant) that she would not have left the hospital unless so directed to by Constable Pajak. Had Constable Pajak failed to direct the defendant to leave, and left it to hospital staff to remove the defendant, it was likely, if not inevitable, that a physical altercation would have ensued. In the circumstances, such an altercation would have been a breach of the peace. For so long as the defendant had refused and continued to refuse the requests of hospital staff that she leave the premises, there had been and would continue to be a risk that they would resort to physical force in order to remove her. The fact that Constable Pajak was able to avoid that outcome by directing the defendant to leave did not mean that that outcome had not been likely before the direction was given. Accordingly, in my view, there was more than a sufficient basis in the evidence for the learned magistrate to find that Constable Pajak had reasonable grounds for believing that a breach of the peace had been committed or was likely to be committed. The learned primary judge did not err in rejecting ground 6 of the notice to review.
22 In June 2007 the appellant's mother was a patient at the Royal Hobart Hospital. The appellant visited her on several occasions, but difficulties developed between the appellant and members of the hospital staff. The police were called on a number of occasions. On 15 June 2007 a police officer, Constable Pajak, gave the appellant a formal direction to leave the hospital and not to return for a period of eight hours. The appellant left, but returned after less than eight hours. She was arrested and charged under the Police Offences Act 1935, s15B, with failing to comply with Constable Pajak's direction. A magistrate subsequently found that charge proven. He did not convict the appellant but, pursuant to the Sentencing Act 1997, s7(f), adjourned the proceedings for 12 months on the appellant giving an undertaking to be of good behaviour and not commit any offences under the Police Offences Act during that period. The appellant sought the review of the finding that the charge was proven, and of the s7(f) order, but a judge of this Court dismissed her motion to review: Nilsson v McDonald [2009] TASSC 1. This is an appeal pursuant to the Justices Act 1959, s123(1), from the order dismissing the motion to review.
23 Section s123(1) permits an appeal to the Full Court only by a party who "is dissatisfied with a rule or order of the Supreme Court in point of law or upon the admission or rejection of evidence". The appellant relied on eight grounds of appeal. I will deal first with ground 6, which I regard as the most meritorious.
Ground 6 - Breach of the peace - Introduction
24 At the hearing before the learned magistrate, Constable Pajak gave evidence to the effect that she directed the appellant to leave the hospital and not return within eight hours because she believed that the appellant had committed or was likely to commit a breach of the peace. The constable was relying on a power conferred by the Police Offences Act, s15B, which reads as follows:
"15B Dispersal of persons
(1) A police officer may direct a person in a public place to leave that place and not return for a specified period of not less than 4 hours if the police officer believes on reasonable grounds that the person -
(a) has committed or is likely to commit an offence; or
(b) is obstructing or is likely to obstruct the movement of pedestrians or vehicles; or
(c) is endangering or likely to endanger the safety of any other person; or
(d) has committed or is likely to commit a breach of the peace.
(2) A person must comply with a direction under subsection (1).
25 Ground 6 of the appellant's grounds of appeal reads as follows:
"6 Her Honour erred in finding, without sufficient basis in all of the admissible evidence, taken together as a whole, that the learned Magistrate could have been satisfied beyond reasonable doubt that Constable Pajak had reasonable grounds for believing that the defendant had committed or was likely to commit a breach of the peace."
26 The appellant's contentions in relation to this ground of appeal included contentions to the following effect:
•
A breach of the peace does not occur unless there is physical violence to a person or to property, or a reasonable basis for fearing physical violence to a person or to property.
•
There was no evidence before the learned magistrate of any physical violence to any person or property, nor that anyone anticipated any possible physical violence to any person or property.
•
Before the learned magistrate, the prosecution case, at its strongest, was that the appellant had made a disturbing amount of noise in the hospital, and there was a likelihood that she would do so again.
•
The learned magistrate erred in law by making a finding that Constable Pajak's direction had been given pursuant to s15B(1)(d) since there was no evidence of physical violence or suggesting any risk of physical violence, and therefore no evidence to support a finding that the appellant had committed or was likely to commit a breach of the peace.
•
The learned primary judge erred in law by rejecting contentions to that effect.
27 The concept of the King's peace has existed in our legal system at least since Saxon times: Holdsworth, History of English Law, Vol 2, 48. It lies at the foundation of our criminal law. According to Blackstone, "All offences are either against the King's peace or his Crown and dignity; and are so laid in every indictment." Bl Comm i 268.
28 There is a long-established common law rule that a person who is committing a breach of the peace may be arrested without warrant. However the reported cases for many years did not make it clear what did or did not constitute a breach of the peace in situations where there was a lot of noise but no physical violence.
29 In Hardy v Murphy (1795) 1 Esp 294, 170 ER 362, the plaintiff was arrested by a constable or "watchman" after talking loudly in a street. He brought an action for trespass and false imprisonment. Eyre CJ directed the jury "that however using loud words in the street might be disorderly, they were not of that description that could authorise a watchman to take a person into custody".
30 In Spilsbury v Micklethwaite [1808] EngR 64; (1808) 1 Taunt 147, 127 ER 788, the plaintiff had interrupted the proceedings of a county court that was electing knights of a shire. The sheriff of the county had the plaintiff arrested and taken before a justice of the peace. The plaintiff sued the sheriff for assault, battery and false imprisonment. The jury found that the plaintiff had not assaulted the sheriff, but were satisfied of allegations pleaded by the sheriff that the plaintiff had "made a great noise and disturbance at the said election; and had obstructed and molested him in the execution of his duty". The sheriff was ultimately successful. Mansfield CJ said the following (at [1808] EngR 68; 1 Taunt 151, 127 ER 789 -790):
"The Plaintiff was guilty of a serious offence against public order; he was guilty of a breach of the peace, for which he might have been punished by indictment. His conduct was such as to call for immediate interposition. The Defendant was not only justified in what he did, but it was his duty to adopt means, (and what better could have been chosen?) to prevent the Plaintiff from continuing to interrupt the proceedings of the court."
31 In R v Curvan (1826) 1 Mood 132, 168 ER 1213, the prisoner was charged with feloniously cutting a man who had been trying to apprehend him. His defence was that he had been illegally arrested, had lawfully escaped, and was entitled to resist being apprehended again. The evidence as to the original arrest was that a man travelling upon a highway had told a constable that a man coming on the road (the prisoner) had been "ill-using" him. That was apparently a reference to insulting language, but there was no evidence as to what was said. The jury convicted the prisoner, but the trial judge reserved the case for consideration by other judges. Graham B and Park J considered the case and held that the original arrest was illegal.
32 Howell v Jackson [1834] EngR 1166; (1834) 6 C & P 723, 172 ER 1435 concerned a disturbance in a public house. There was evidence that the plaintiff and others were "skylarking, bonneting, and kicking up a rumption". The plaintiff was arrested by the landlord, and immediately given into the custody of a peace officer or watchman. He sued the landlord for false imprisonment. Parke B directed the jury that the defendant's conduct would have been lawful if the plaintiff had assaulted him, and went on to give the following direction (at [1834] EngR 1169; 6 C & P 725, 172 ER 1437):
"There might, it is true, be a sufficient breach of the peace to justify the defendant as the landlord of the house in giving the plaintiff into custody without this assault, and even if there was no assault at all. For if the plaintiff made such a noise and disturbance as would create alarm, and would disquiet the neighbourhood and the persons passing along the adjacent street, that would be such a breach of the peace as would not only authorize the landlord to turn the plaintiff out of the house, but it would also give the landlord a right to have the plaintiff taken into custody, if this occurred in the view of the watchman."
33 Ingle v Bell [1836] EngR 116; (1836) 1 M & W 517, 150 ER 539 concerned a disturbance outside a public house. The landlord gave the plaintiff in charge to a policeman. The plaintiff sued the landlord for assault and false imprisonment. The defendant pleaded that the plaintiff had "created a disturbance in the street, by which means a mob was assembled and the defendant's business interrupted and his customers annoyed, and ... the plaintiff threatened to continue and persevere in such violent conduct, and to renew his attempts and efforts to get into the ... public-house." The jury found for the defendant. The plaintiff sought to have judgment entered in his favour despite the verdict of the jury. He failed. In the course of argument, Parke B said (at [1836] EngR 17; 1 M & W 519, 150 ER 540):
"It does not appear that the breach of the peace had ceased, but the contrary. In order to justify himself, the defendant must shew that there was a danger of the breach of the peace being renewed; and if he does so, that is sufficient."
34 Cohen v Huskisson [1837] EngR 57; (1837) 2 M & W 477, 750 ER 845 was another action brought by a plaintiff who had been arrested during a disturbance in front of a public house. The jury found for the defendant/landlord, but the plaintiff moved for a new trial. He failed. Lord Abinger CB said the following (at 2 M & W 482, 750 ER 847 - 848):
"... it cannot be denied that a breach of the peace was committed. The uttering of the abusive words imputed to the plaintiff, abstractedly speaking, undoubtedly would not make it so; but if they are so uttered, and in such a place, as to attract a crowd of a hundred persons, and when that crowd is collected the party continues to use the same abusive language, nobody can tell whether the passions of the crowd may not be thereby inflamed, and whether they may not proceed to execute the vengeance which the party himself invokes and threatens. It is necessary to prevent in the first instance the mischief that may ensue under such circumstances: and I am of opinion that such acts, under such circumstances, do amount to a breach of the peace."
35 Webster v Watts (1847) 11 QB 310, 716 ER 492 was yet another case in which a plaintiff was removed from a public house and sued the landlord for damages. Lord Denman CJ, Wightman and Erle JJ held that the defendant was entitled to judgment. Erle J said the following (at 11 QB 324 - 325, 716 ER 498):
"Here no actual blow is stated ... It is not every noise, nor every circumstance alarming to a very timid person, which will justify giving charge of the party who misconducts himself: but, when a man is standing in the highway opposite to another's house, making a disturbance, exciting others to disturbance and riot, and obstructing the public way, these are facts which may well ... amount to such a breach of the peace as justifies an arrest."
36 It is clear from these old cases that there could be a breach of the peace without actual physical violence towards any person or property, and that noisy, threatening or insulting behaviour would sometimes, but not always, amount to a breach of the peace. But no clear principle emerged as to what did or did not amount to a breach of the peace in the absence of actual violence. That state of uncertainty continued until the decision of the English Court of Appeal in R v Howell [1982] QB 416. The defendant in that case was amongst a group that congregated in a street outside a house where a party was being held. He swore at two constables and was arrested. Questions arose as to whether there had been an actual, threatened or contemplated breach of the peace. The Court of Appeal (Watkins LJ, Cantley and Hollings JJ) heard detailed argument about the old cases. Watkins LJ, delivering the judgment of the court, said (at 426):
"A comprehensive definition of the term 'breach of the peace' has very rarely been formulated so far as, with considerable help from counsel, we have been able to discover from cases that go as far back as the 18th century. The older cases are of considerable interest but they are not a sure guide to what the term is understood to mean today, since keeping the peace in this country in the latter half of the 20th century presents formidable problems which bear upon the evolving process of the development of this breach [sic] of the common law. Nevertheless, even in these days when affrays, riotous behaviour and other disturbances happen all too frequently, we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done."
37 After reviewing some more recent attempts to define the term, his Lordship said (at 427):
"We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant."
38 Some six months later, a wider meaning was given to the term by Lord Denning MR in R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458 at 471. That case concerned peaceful demonstrations in Cornwall at a proposed site for a nuclear power station. Lord Denning said the following:
"There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker - by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace."
39 Although R v Howell (supra) had been referred to in argument, his Lordship did not say why he disagreed with what was said in that case. In fact he did not even mention it. The other members of the Court of Appeal, Lawton and Templeman LJJ, did not adopt what Lord Denning said. It has been suggested that it is implicit in their judgments that, unlike Lord Denning, they each took the view that some violence or threat of violence was necessary for there to be a breach of the peace: Percy v Director of Public Prosecutions [1995] 1 WLR 1382 at 1393 (Divisional Court - Balcombe LJ and Collins J). Two judges of this Court have suggested that Lord Denning went too far in R v Chief Constable of Devon and Cornwall: Innes v Weate [1984] Tas R 14 at 22 (Cosgrove J); R v Commissioner of Police, ex p North Broken Hill Ltd (1992) 1 Tas R 99 at 110 (Wright J).
40 Percy v Director of Public Prosecutions (supra) concerned a woman who, on five occasions within about two hours, climbed over the perimeter fence of a military air base for the purpose of protesting peacefully. The Court decided to follow R v Howell in preference to the dictum of Lord Denning MR in R v Chief Constable of Devon and Cornwall.
41 Subsequently, the definition of breach of the peace in R v Howell has been treated as correct, and as settled law, by the Ontario Court of Appeal, the European Commission of Human Rights, the European Court of Human Rights, and the House of Lords: Brown v Durham Regional Police Force (1998) 131 CCC (3d) 1 at 27; Steel v United Kingdom [1998] ECHR 95; (1998) 28 EHRR 603; R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; [2007] 2 AC 105 at 123 - 124.
42 The Police Offences Act does not contain any definition of "breach of the peace". I think it must follow that those words, when they are used in s15B(1)(d), were intended to refer to the common law concept of a breach of the peace. It must be accepted that that concept has been authoritatively defined by the second of the passages that I have quoted from R v Howell (supra). There cannot be a breach of the peace, within the meaning of s15B(1)(d), unless there is violence or a likelihood of violence.
The evidence as to actual or anticipated violence
43 Because of the wording of s15B(1), the critical question was not whether the appellant had done, or was likely to do, anything violent. The critical question was whether Constable Pajak believed on reasonable grounds that the appellant had committed or was likely to commit a breach of the peace. Constable Pajak's evidence suggested that her understanding of what constituted a breach of the peace did not coincide with what was said in R v Howell (supra).
44 During her examination-in-chief, Constable Pajak said that she gave the appellant a formal direction to leave the Royal Hobart Hospital and not to return for a period of eight hours. She was asked to state the basis of the direction that she gave. She replied as follows, referring to the appellant:
"Um, she had already committed several offences, the main being trespass. She'd refused to leave when the hospital staff had asked. She did tell me that she had no indication - or no - she was going to leave once police had told her but she wasn't satisfied that um hospital staff could tell her to leave. So on that basis I was - formed the opinion that she may commit another offence. There was also um issues in relation to breaches of the peace, um, the defendant was very argumentative, belligerent, and shouting at the top of her voice talking over everyone else, um - that was very loud in the ward um, it was obviously a ward containing a lot of um very sick people, and that we weren't going to tolerate her er committing any other breaches of the peace, it wasn't appropriate." [My emphasis.]
45 In the course of Constable Pajak's cross-examination, the transcript records the following questions and answers as to a possible breach of the peace:
"And there had been no information conveyed to you that there was a breach of the peace occurring?.......No, but that was in my observations in that the defendant, her behaviour um was provoking a breach of the peace. It was, in my opinion, unacceptable for her to be shouting and raising her voice and arguing in a - a ward of um the Ho - Hobart Hospital.
Because I'd like to suggest to you that the defendant in fact wasn't shouting that um - that she was simply um, perhaps indignant, as to being asked to sign a visitation agreement?.......Well she was - my observations was that she was very agitated, um, when I tried to engage in conversation with the defendant she - she was not prepared to listen to what I had to say. Now I tried to be understanding and - and ask her for her opinion and what her problems were, by doing that um and trying to get my point of view across and then speaking with her, she continued to talk over the top of me and - and it became almost -"
46 After an interruption, the learned magistrate asked the constable to continue. The constable said the following:
"By trying to engage in a conversation with the defendant um, she just continued to shout and yell over the top of what I was talking to her about and I thought that was completely inappropriate and that she needed to be removed from the hospital."
47 A little later, there was the following exchange between the cross-examiner and the constable:
"Well I'd like to suggest to you the reason why you didn't think it was um appropriate to arrest her there was because her behaviour wasn't upsetting anybody else, she was simply being firm and adamant about her right not to sign an agreement?...... I certainly wouldn't her - have arrested her for breaching the peace then and there. I - I didn't see that it was appropriate, because I knew that - she stated to me that she was happy to leave and just for probably five minutes I attempted to speak to her about this visitation agreement."
48 A little later, there were the following questions and answers:
"Well Constable, was this particular behaviour that you are suggesting caused the basis for a breach of the peace, your belief for a breach of the peace?.......Yes, that's correct, that's - that's why I gave her a direction. I'd - I didn't see that it was appropriate to um - I didn't think it was necessary to arrest her for breaching the peace then and there, but I certainly saw that it was appropriate to give her a direction to leave the hospital and not return so that um further offences, or a breach of the peace, would be committed.
But she's already on your evidence, committed a breach of the peace?.......That's correct. But my discretion was that it wasn't necessarily appropriate to arrest her. She was very upset and obviously it was a - a matter that was um very emotional in relation to her mother and um often the best thing is not to um deal with something and arrest somebody straightaway, when obviously she's upset." [My emphasis.]
49 A little later, there was the following exchange, which began with a comment by the learned magistrate to defence counsel:
"HIS HONOUR: But she says at the end of the day she didn't ask her to leave because she thought there was a trespass - she asked her to leave because there was a breach of the peace - or a potential for breach of the peace -
WITNESS: That's correct.
HIS HONOUR: - is that what you say?
WITNESS: Yes."
50 A little later, the witness said that, as part of the direction to leave, she informed the appellant "that her behaviour was not acceptable in the hospital" and that "the shouting, the belligerence, the arguing, that was not acceptable".
51 There was no evidence from Constable Pajak or anyone else that the appellant had done any physical harm, or threatened any physical harm, to anyone or anything. There was no basis for inferring that her conduct might have provoked violence on the part of anyone else. Constable Pajak did not say anything to the effect that she feared, anticipated or contemplated that the appellant might reach the point of harming, or being violent towards, anyone or anything. The passages that I have quoted from the constable's evidence are consistent with the constable believing that shouting and loud talking in a hospital ward necessarily amounted to a breach of the peace. The words I have emphasised suggest that, according to the constable's way of thinking, the shouting and loud talking she described necessarily constituted a breach of the peace.
The learned magistrate's finding as to s15B(1)(d)
1">52 The learned magistrate gave oral reasons for finding the charge proved immediately after hearing submissions from both counsel. In order for the prosecution to succeed, he needed to be satisfied beyond reasonable doubt, amongst other things, that, when she directed the appellant to leave the hospital, Constable Pajak held a belief about the appellant, on reasonable grounds, that fell within one of the provisions of s15B(1). There was evidence that the appellant had committed a trespassing offence, contrary to the Police Offences Act, s14B(1), by remaining on the hospital premises without consent after having been told to leave. However the learned magistrate chose not to consider the proposition that Constable Pajak's direction had been lawfully given pursuant to s15B(1)(a), which applies when a police officer believes on reasonable grounds that a person has committed an offence, or is likely to do so. Instead, he based his decision on s15B(1)(d), which applies when a police officer believes on reasonable grounds that a person has committed, or is likely to commit, a breach of the peace. According to the transcript, he said the following as to what constitutes a breach of the peace:
"Well breach of the peace, er, is basically - consists of acts that will reasonably produce alarm in the mind - in the minds of other people. Not necessarily alarm, in the sense of personal fear, but such alarm is causing them to believe that what is going to be done causes, or will cause, real disturbance to the community in the breaking up of the peace of the neighbourhood. In other words it's a pretty broad definition. I just simply rely on Stroud's Words and Phrases and Butterworths for that definition.
If I look at another definition er contained in Butterworths Australian Legal Dictionary, er - well 1997 version, breach of the peace:
Conduct that threatens to create civil unrest or disturbance, conduct that offends another person and it [sic] might result in an outbreak of violence, constitutes a breach of the peace.
I mean I don't think there's any argument as to that - those definitions adequately er set out the - what a breach of the peace er is."
53 In that passage, it can be seen that the learned magistrate referred to conduct that "might result in an outbreak of violence", but did not acknowledge that actual or likely harm or violence to a person or property is an essential ingredient of a breach of the peace. The fact that he relied on two definitions, one of which included nothing about actual or possible violence, compels a conclusion that he did not regard actual or likely harm or violence to a person or property as an essential ingredient of a breach of the peace.
54 He went on to make a finding that s15B(1)(d) was satisfied. He made a finding to the effect that Constable Pajak believed on reasonable grounds that the appellant was likely to commit a breach of the peace. From the transcript, it is unclear whether or not he also made a finding that the constable believed on reasonable grounds that the appellant had already committed a breach of the peace. He expressed his conclusion as follows:
"I've come to the conclusion beyond all reasonable doubt that the police officer was - had reached a reasonable conclusion in er coming to the decision that there was - had been a breach of the peace, or er was likely to be a breach of the peace."
55 It is not clear from the transcript whether the words "had been a breach of the peace" were withdrawn. When he went on to say, "or er was likely to be a breach of the peace", the learned magistrate might have been adding to his previous few words, but on the other hand he might have been withdrawing them and saying something different.
56 Either way, the learned magistrate erred in law by concluding that the prosecutor had proved beyond reasonable doubt that a direction had been given pursuant to s15B(1)(d) when he had not made any finding as to the state of mind of Constable Pajak as to the likelihood of violence or harm to any person or property. There is absolutely nothing in his reasons to suggest that he regarded violence or the likelihood of violence as an essential ingredient of a breach of the peace. Read as a whole, his reasons compel the conclusion that he was unaware of that requirement.
The primary judge's conclusions as to a breach of the peace
57 The appellant represented herself before the learned primary judge. She relied on R v Howell (supra) and Innes v Weate (supra). In her reasons, the learned primary judge said the following about the need to establish actual or likely violence:
"While clearly the learned magistrate made no reference to either of the cases to which the applicant has now referred, neither counsel at the hearing referred him to them nor did either cavil with his definition. The applicant's submission appears to be based upon the fact that the learned magistrate did not quote the words from either of these cases and did not identify with any emphasis the reference to violence or anticipated violence in his definition. As a consequence she says the definition he relied on was wrong. However with respect, he did not have to use the words from either the English or Tasmanian cases referred to. The definition quoted was from a respected legal dictionary even though the transcript does not record it accurately: the word 'it' should be 'that'. Clearly the definition contains the element that the conduct needs to be such as might result in violence and it must be inferred the learned magistrate was alert to that."
58 Her Honour went on to discuss the evidence as to a 000 call by the appellant, and evidence that the appellant had called the hospital legal officer an arrogant bitch. She commented that there was no evidence to suggest that there was any threat of violence or any indication at all that the use of those words might have led to violence. She went on to reject two grounds of review by which the appellant had asserted that the learned magistrate erred by making a finding, without sufficient basis in the admissible evidence, that Constable Pajak had the requisite belief as to a breach of the peace. Her reasons were stated as follows:
"There was no evidence otherwise that the applicant used or threatened violence. There was no evidence from either police officer or indeed anyone else that they were afraid that the applicant would become violent unless she was removed from the hospital. While she was, if the evidence is accepted, creating a noisy scene which may have been disturbing other patients and visitors in the area, the question remains whether Constable Pajak, by reference to that behaviour, could have formed the requisite belief.
It seems clear that Constable Pajak believed that the applicant's behaviour as she observed it amounted to a breach of the peace and that she was concerned that, if the applicant remained in the hospital, the behaviour would continue and be likely to constitute a breach of the peace. The issue for determination by the learned magistrate was never whether he could be satisfied beyond reasonable doubt that the applicant had committed a breach of the peace, but whether he could be satisfied beyond reasonable doubt that Constable Pajak believed on reasonable grounds that the applicant had committed a breach of the peace or was likely to commit one, or that the applicant had committed, or was likely to commit, an offence. A police officer acting in these circumstances is not obliged to ascertain with absolute certainty prior to giving a direction that, if a person to whom a direction was given was charged with an offence, every element of that offence would be able to be proved beyond reasonable doubt. The police officer is only obliged to form a belief on reasonable grounds as to a state of affairs. As long as that belief is a reasonable one it does not matter that it might subsequently be found to have been incorrect.
The learned magistrate accepted the evidence of the police officers where it was in conflict with that of the applicant as to the nature of her behaviour. He gave reasons for so doing and those findings are not challenged (they appear at 162 of the transcript). The nature of the applicant's behaviour as described by the officers when combined with what was known of the history between the applicant and the hospital staff could quite reasonably have left Constable Pajak with a belief that, if unchecked, the applicant's behaviour might escalate to a physical confrontation. That would be sufficient grounds for the direction she gave.
Grounds 4 and 6 should fail."
59 The paragraphs I have just quoted did not contain any analysis of the learned magistrate's reasons. What the learned primary judge did in those paragraphs was to undertake an analysis of the evidence before the learned magistrate, and to outline an evidentiary basis for a finding - one he had not made - that Constable Pajak could have believed that the appellant was likely to become violent. In my view, that sort of analysis and reasoning is inconsistent with the role that the learned primary judge had. She was dealing with a motion to review the determination and order of a magistrate pursuant to the Justices Act, s107(1). It was necessary for her to consider whether there had been some error or mistake on the part of the learned magistrate: s107(4)(a). A motion to review under s107 is not an appeal by way of rehearing, and it is therefore not open to a judge conducting a review under s107 to weigh the evidence and reach his or her own conclusions: Richardson v Shipp [1970] Tas SR 105 at 117; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 per Cox CJ at par7. If Constable Pajak could reasonably have believed that the appellant's behaviour was likely to escalate to a physical confrontation, that is beside the point. Constable Pajak did not give evidence that she held such a belief. The learned magistrate did not infer that she held such a belief. In making a finding that the constable believed on reasonable grounds that the appellant was likely to commit a breach of the peace, and possibly also a finding that the constable believed on reasonable grounds that the appellant had committed a breach of the peace, the learned magistrate erred in law, because it was not open to him to make any such findings without first having made a finding that the constable believed that there was a likelihood of violence. Section 107 compelled the learned primary judge to conclude that the learned magistrate had made such an error. She made no error of law as to the nature of a breach of the peace, but she erred in law in failing to proceed in accordance with s107, in that she failed to hold that the learned magistrate had erred in law in the way I have outlined.
60 Ground 6 must therefore succeed. I will go on to deal with the other grounds in numerical order.
Ground 1 - Refusal to order a hearing de novo
61 The appellant applied to the learned primary judge for an order that the complaint against her be heard de novo pursuant to the Justices Act, s111. She did so on the basis that she had been represented by incompetent counsel who had failed to tender relevant documents. The learned primary judge considered the provisions of s111 and the nature of the untendered documents, but concluded that she was not satisfied that it was in the interests of justice that there be an order permitting a hearing de novo, and refused the application for one. By ground 1, the appellant contends that her Honour erred in holding that it was not in the interests of justice to order a hearing de novo.
62 For present purposes, I am prepared to accept that either the incompetence of counsel or the failure to tender relevant documents or both can be a sufficient basis for a judge to order a hearing de novo under s111. The decision whether or not to make such an order is a discretionary one. The principles applicable to an appeal concerning such a discretionary decision are those stated by Dixon, Evatt and McTiernan JJ in the following passage in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
63 As I understand her submissions, the appellant's complaints asserting incompetence on the part of her counsel are confined to the proposition that her counsel did not tender or seek to tender the untendered documents. Those documents comprise the following:
•
Constable Pajak's proof of evidence.
•
A fact sheet prepared by Constable Pajak for the prosecutor.
•
Notebook entries of Constable Pajak.
•
A transcript of a discussion in the police charge room between the appellant, Constable Pajak, and a custody sergeant.
•
The second reading speech for the Police Offences Amendment Bill 2001, by which s15B was introduced.
•
A fact sheet relating to that Bill.
64 There is no suggestion that any of these documents were unavailable at the time of the hearing before the learned magistrate. In my view there is nothing in any of them that suggests that they might have made any difference to the findings of the learned magistrate or the outcome of the case. The learned primary judge thoroughly analysed the nature and significance of the untendered documents in her reasons at pars9 - 13. I am unable to detect any error of fact or law, any taking into account of extraneous or irrelevant matters, or any overlooking of a material consideration in her reasons for refusing a hearing de novo. There is no basis, in my view, for concluding that it was unreasonable or plainly unjust for her not to order one. No purpose would be served in repeating or summarising the passage in her reasons that is relevant to this ground. Ground 1 must fail.
65 By these grounds, the appellant contends that the learned primary judge erred in holding that the place where her alleged conduct occurred, and the place where Constable Pajak's direction was given, were public places.
66 Because of the opening words of s15B, the prosecutor bore the burden of proving beyond reasonable doubt that the constable's direction was a direction to "a person in a public place to leave that place ...". The section is silent as to whether such a direction may be given in relation to a breach of the peace that has occurred, or is likely to occur, only in a place that is not a public place.
67 Constable Pajak gave evidence that her direction was given in the foyer of the hospital. She said was that she arrived at the hospital at about 10.55am. Her evidence suggested that the direction was given shortly afterwards. The appellant however gave evidence that the direction was given when she was standing on the footpath in Argyle Street, about 10 feet from the door of the hospital. The learned magistrate made a general finding that he preferred the police evidence instead of the appellant's evidence. He did not make a specific finding that the constable's direction had been given in the foyer, but it is clear that, in accepting the police evidence generally, he accepted the evidence as to that point. He did not make a specific finding that either the foyer or the hospital was a public place, but he did make a comment to the effect that the person who runs a public place can shut it down from time to time. I think it is clear from that comment that he was satisfied beyond reasonable doubt that the hospital, or at least the foyer, was a public place.
68 Before the learned primary judge, the appellant contended that the hospital premises were not a public place, and that the constable's direction was therefore not given pursuant to s15B. The learned primary judge considered the definition of "public place" in the Police Offences Act, s3(1), and another definition of the same term in the Acts Interpretation Act 1931, s46. After reviewing some relevant cases and the evidence about the hospital, she concluded that the hospital foyer was a public place, at least at the time the constable's direction was given. She went on to consider issues the learned magistrate had not addressed, as to whether the appellant's mother's room in the hospital, and other places near it, were public places. She reached no conclusion as to the mother's room, but concluded that the appellant's behaviour "impacted on public areas".
69 The definition of "public place" in the Police Offences Act begins, "'public place' includes - ", and goes on to list dozens of different types of places, for example, "any park, garden, reserve, or other place of public recreation or resort", and "any banking house, warehouse, shop, office, or similar place while open for the transaction of business". There is no mention of hospitals. However the learned primary judge concluded that the definition was not intended to be exhaustive.
70 I agree. The Acts Interpretation Act, s8A(1), requires that, in the interpretation of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object. The relevant purposes and objects of the Police Offences Act are the preservation of order and safety. Limiting the interpretation of the words "public place" to the sorts of places listed in the definition, so as to exclude hospitals, would not promote the purposes or objects of the legislation. A wide interpretation would promote those purposes and objects. It follows that a wide interpretation must be preferred.
71 The Acts Interpretation Act, s46, defines "public place" to mean "any place to which, at the relevant time, the public have access, whether on payment of money for admission thereto or otherwise".
72 In my view judicial notice can properly be taken of the fact that hospital foyers are invariably open to the public late in the morning. There can be no doubt that the foyer in question was a public place at the relevant time. Whether the constable's direction was given there or outside on the footpath, it must have been given in a public place as required by s15B.
73 There is nothing in s15B that limits its operation in relation to actual or likely breaches of the peace to breaches occurring in public places, or having an impact on people in public places. Once again, I think the Acts Interpretation Act, s8A, is significant. The purpose or object of s15B will be promoted by giving it a wide interpretation rather than a narrow one. I think it must follow that s15B(1)(d) relates to actual or likely breaches of the peace wherever they occur, including those occurring or likely to occur in places that are not public. It therefore does not matter whether the learned primary judge made an error as to some places in the hospital being public places, or whether the alleged conduct of the appellant occurred in places that were not public places.
Grounds 4 and 5 - The complaint and the amending of it
75 These two grounds relate to the wording of the complaint by which the proceedings were initiated, and an amendment to it that the learned magistrate permitted to be made during the hearing.
76 In its original form, the complaint contained the following particulars of the charge against the appellant:
"You are charged with on the 15th June, 2007 at the Royal Hobart Hospital a public place at Hobart in Tasmania having been directed under the provisions of subsection 1, to leave that place and not return for a specified period of not less than 4 hours, by Constable PAJAK a police officer who had reasonable grounds for believing you had committed or was [sic] likely to commit an offence, and you unlawfully failed to comply with that direction."
77 Clearly the complainant was relying only on s15B(1)(a), which relates to offences, and not on s15B(1)(d), which relates to breaches of the peace. Under the Police Offences Act, s14B(1), which I have already referred to, it is an offence for a person, without reasonable or lawful excuse, to remain in a building without the consent of the owner, occupier or person in charge of it. The learned magistrate received evidence that the hospital legal officer had told the appellant to leave the hospital, that the appellant had refused, that the police had been called, that Constable Pajak and another officer attended, and that they were told by the hospital staff that the appellant had refused to leave. However it emerged during Constable Pajak's evidence-in-chief that, even though she believed the appellant had committed an offence by refusing to leave the hospital when a staff member asked her to go, the reason that she directed her to leave the hospital and not return for eight hours was that she believed the appellant had been making too much noise, and that she was likely to do so again. The constable made it clear that her direction was not given because of her belief that the appellant had committed an offence by remaining inside the hospital without consent. Subsequently, the prosecutor successfully applied to amend the complaint so as to rely on s15B(1)(d). After the words "a police officer who had reasonable grounds for believing you had committed or was [sic] likely to commit an offence," the following words were inserted:
"and/or has [sic] committed or is [sic] likely to commit a breach of the peace".
78 In its original form, the complaint alleged a belief on the part of Constable Pajak that the appellant had committed, or was likely to commit, an offence, but did not say what that offence was. Before the learned primary judge, the appellant submitted that the complaint was therefore defective, and that the learned magistrate should therefore have dismissed it. She relied on the Justices Act, s31, which begins with the following subsections:
"(1) An objection shall not be taken or allowed to a complaint in respect of -
(a) an alleged defect therein, in substance or in form; or
(b) a variance between it and the evidence in support thereof.
(2) Notwithstanding the provisions of subsection (1), where -
(a) a complaint fails to disclose an offence or matter of complaint; or
(b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection -
the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint."
79 However the appellant's then counsel did not make any submissions to the learned magistrate about the complaint being defective. There is no reason to think that the appellant would have been prejudiced by the fact that the complaint did not particularise any offence that was alleged to be the subject of a belief on the part of Constable Pajak. It was part of the appellant's case that she had refused to leave when members of the hospital staff asked her to go. It must have been obvious that the prosecution case was likely to be based on the appellant having contravened s14B(1). Further, the Justices Act, s30(1)(b), provides that "Any complaint ... shall be sufficient if it ... contains such particulars as will give reasonable information of the nature of the matter complained of." The learned primary judge concluded that the complaint did that. Her conclusion was plainly correct. Ground 4 asserts that she should have dismissed the complaint as defective because it lacked particulars. That ground must fail.
80 The appellant submitted to the learned primary judge that the learned magistrate should not have permitted the amendment to the complaint. Her Honour rejected that argument, saying, "I am not satisfied the applicant was in any way prejudiced by the amendment permitted by the learned magistrate." By ground 5, the appellant now contends that the learned primary judge erred in holding that there was no prejudice to her as a result of the amendment. The appellant submitted to us that she had been prejudiced by the amendment in that (a) she had been deprived of a proper opportunity to prepare her defence; and (b) the amendment amounted to the bringing of a different charge against her after the expiry of the six-month limitation period imposed by the Justices Act, s26(1)(a).
81 The hearing before the learned magistrate focused on the appellant's conduct at the hospital before and after the arrival of the police officers. It is clear from the transcript that the appellant's counsel was adequately prepared to cross-examine, lead evidence, and make submissions in relation to that subject. There is no reason to think that the preparation or conduct of the defence case would have been any different if the appellant and her counsel had been forewarned that the prosecutor would be relying on s15B(1)(d). The appellant's counsel was unable to identify any prejudice when she made submissions to the learned magistrate about the amendment.
82 The essence of the charge against the appellant was that a police officer had given her a direction under s15B in a public place to leave that place and not return during the next eight hours, and that the appellant failed to comply with that direction in that she returned within the specified period. The amendment did not involve any change to the allegations as to the giving of a direction or as to the appellant not complying with that direction. It involved only the introduction of a new basis on which it was contended that the constable's direction was lawful. In my view that did not result in the appellant being charged with a new and different offence.
83 The power to amend is conferred by the Justices Act, s31(3), which reads as follows:
"(3) If it appears to the justices that the complaint -
(a) fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect -
the justices may amend the complaint upon such terms as may be just."
84 A variance between the charge in a complaint and the evidence in support thereof makes the complaint "otherwise defective" within the meaning of s31(3)(a): Canning v Taylor [1967] Tas SR 42. The power to amend extends so far as to permit the complaint to be amended so that a defendant is charged with a different offence: Hayes v Wilson, ex parte Hayes [1984] 2 Qd R 114. That case is authority for the proposition that an amendment that changes the charge to a different but similar charge may be permitted after the expiry of a limitation period if no injustice results to the defendant. See also Garfield v Maddocks [1974] QB 7; R v Newcastle-upon-Tyne Justices, ex parte John Bryce (Contractors) Limited [1976] 1 WLR 517 at 520. Even if, contrary to my earlier conclusion, the amendment resulted in a different offence being alleged, no injustice can have resulted from that. Ground 5 must fail.
85 By this ground the appellant contends that the learned primary judge erred in failing to receive as evidence the first four documents that I referred to above in my reasons concerning ground 1. She relied on the Justices Act, s110(2), which permits a judge, on the hearing of a motion to review, to receive further evidence if he or she thinks fit. However this was not a situation in which it was appropriate for the learned primary judge to receive additional evidence that was available at the time of the hearing in the lower court. The documents had nothing to do with any of the grounds of review relied upon by the appellant, all of which quite properly focussed on contentions that the learned magistrate had made errors of law and fact. The learned primary judge was right to refuse to receive those documents as further evidence. Ground 7 must fail.
86 By this ground, the appellant asserts that the learned primary judge "erred in taking into account irrelevant factors in assessing the appropriateness of the penalty imposed."
87 The "penalty" referred to is the order under the Sentencing Act, s7(f), adjourning the proceedings for 12 months on the appellant giving an undertaking to be of good behaviour and not commit any offences under the Police Offences Act during that period. Before the learned primary judge, the appellant contended that that order was inappropriate, that it was disproportionate to the circumstances and seriousness of the alleged offence, and that it failed to take into account the fact that she had been bailed for 14 months with a condition requiring her to be of good behaviour. The appellant now contends that the learned primary judge took into account irrelevant matters relating to her conditional bail. The learned primary judge said the following:
"The applicant also made reference to the fact that she had been on conditional bail for 14 months during which she had been required to be, and she said had been, of good behaviour. The first point to be made about that last submission was that the applicant had been bailed in respect of a matter other than that with which the learned magistrate was dealing. Secondly there was no evidence, apart from the contents of the bail document, to indicate the nature of the matter in respect of which the applicant had been bailed, nor any evidence as to whether or not there had been any breach of bail in the intervening time."
88 The appellant told the learned primary judge that she had been arrested the day before the day in question; that she had been bailed on the charge relating to that previous day; that it was a condition of that bail that she be of good behaviour; and that the charge from the previous day had been withdrawn about a month before the hearing of the motion to review. All of those matters were irrelevant to the review of the s7(f) order because they related to other proceedings and were not brought to the attention of the learned magistrate. The learned primary judge was correct to observe that the bail related to a different matter, and that there was no evidence before the learned magistrate as to whether there had been any breach of bail. It may be that her Honour's comment about the nature of the other charge was irrelevant but, if so, it was also inconsequential. The learned magistrate dealt with the appellant very leniently, given that he was satisfied beyond reasonable doubt that she had deliberately contravened a direction from a police officer by returning to the hospital some two hours after the direction was given, with the result that the police needed to be called again, and that she needed to be arrested. There is nothing in the material before us to indicate any error by the learned magistrate in relation to sentencing. In the words of House v The King (supra), the order that he made was not "unreasonable or plainly unjust". Ground 8 must fail.
89 For the above reasons, I think that only ground 6 should succeed. It should succeed on the basis that the learned magistrate erred in being satisfied beyond reasonable doubt that Constable Pajak's direction had been validly given pursuant to s15B(1)(d).
90 Counsel for the respondent submitted that, if we were to reach that conclusion, this appeal should still be dismissed because Constable Pajak had the power to give her direction pursuant to s15B(1)(a), and dismissing the appeal would therefore not result in a miscarriage of justice. There was unchallenged evidence that Constable Pajak believed that the appellant had committed an offence by refusing to leave the hospital when the consent of hospital staff to her remaining there had been withdrawn. It was open to the learned magistrate to find that she had reasonable grounds for that belief. If she had reasonable grounds for that belief, s15B(1)(a) empowered her to direct the appellant in a public place to leave that place and not return for a specified period of not less than four hours. That is what she did. But, according to her evidence, she did not regard the appellant's commission of a trespassing offence as warranting the giving of the direction when the appellant was in the process of leaving the hospital. She only gave the direction because of a belief about a breach of the peace. Her evidence suggests that that belief was based on a misconception as to what amounts to a breach of the peace. If she had had a full and accurate understanding of that concept, she might not have given the direction.
91 Counsel for the respondent relied on s110(2)(ab), which empowers a judge hearing a motion to review to dismiss the motion, even though some ground of review might be decided in the applicant's favour, if he or she considers that no substantial miscarriage of justice has occurred. However I do not think it would be fair to dismiss this appeal on any such basis because of the strong possibility that the constable would not have given her direction if she had had a full and accurate understanding of what amounts to a breach of the peace. Ground 6 having succeeded, the orders of the learned primary judge and the learned magistrate must be set aside. In all the circumstances, I think it would be unfair to remit the matter to the Magistrates Court for re-determination.
92 I would therefore allow the appeal, set aside the orders of the learned primary judge and the learned magistrate, and dismiss the complaint.
[1] An appeal to the High Court was successful on a different point. Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1.
Nilsson
McDonald [2009] TASSC 66
(1993) 2 Tas R 232
(2008) 238 CLR 1
(1986) 161 CLR 278
(1992) 1 Tas R 99
(1936) 55 CLR 499
(2008) 236 CLR 1