Rolles v Commissioner of Police [2020] QDC 331

Justices Act 1886 (Qld) s 222, s 223, s 225

Police Powers and Responsibilities Act 2000 (Qld) s 791

Transport Infrastructure Act 1995 (Qld) s 255, s 256, s 257

Avery & Ors v Queensland Police Service [2019] QDC 21

Berceanu v Buttriss & Anor [2004] QDC 20

Coal and Allied Operations Proprietary Limited v Australian Industrial Relations Commission (2000) 293 CLR 194

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy (2003) 214 CLR 18

GS v QPS [2020] QDC 205

House v King (1936) 55 CLR 499

R v Dimitropoulos [2020] QCA 75

R v Ferrari [1997] QCA 73; [1997] 2 Qd R 472

R v GV [2006] QCA 394

R v Julian [1998] QCA 119; (1998) 100 A Crim R 430

R v Mrzljak [2004] QCA 420; [2005] 1 Qd R 308

R v Wilson [2008] QCA 349; [2009] 1 Qd R 476

Nolin v Commissioner of Police [2019] QDC 171

Teelow v Commissioner of Police [2009] QCA 84

Tierney v Commissioner of Police [2011] QCA 327

Webster & Co v Australasian United Steam Navigation Co Ltd [1902] St R Qd 207

Queensland Police Service Legal Unit for the Respondent

• [1] By Notice of Appeal filed on 20 June 2019 the Appellant appealed against the sentence imposed after a finding of guilt. An Amended Notice of Appeal was filed on 7 February 2020 against conviction out of time. For the reasons stated below leave is granted to appeal out of time.
• [2] The Appellant appeals pursuant to s 222 of the Justices Act 1886 ("Justices Act"), the decision of Acting Magistrate Muirhead in the Magistrates Court at Bowen made on 28 May 2019. The Appellant pleaded not guilty to three charges, namely:

(b) Interfere with a railway - 22 November 2018; and

(c) Contravention of a police direction - 21 November 2018.

• [3] After trial, the Appellant was found guilty by the Acting Magistrate of each charge. The legislation relevant to these sections is contained in ss 255, 256 and 257 of the Transport Infrastructure Act 1995 (Qld) and s 791 of the Police Powers and Responsibilities Act 2000 (Qld). Those sections state as follows:
  1. Interfering with railway

(1) A person in or on a railway corridor must not interfere with a railway under the control of a railway manager unless -

(a) the person has the railway manager's written approval; or

(b) the interference is permitted or authorised under a right of access under section 240E, section 253 or the Rail Safety Law; or

(c) the interference is otherwise approved, authorised or permitted under this Act or another Act.

(2) An approval may be subject to a reasonable condition.

(4) Subsection (1) does not apply to a person who carries out urgent maintenance of a railway.

(5) This section binds all persons, including the State, the Commonwealth and the other States.

(a) carry out works in or on a railway corridor; or

(b) otherwise interfere with the railway or its operation.

(a) land subleased to a railway manager under section 240; or

(c) future railway land under the control of a railway manager; or

(1) If a person contravenes section 255(1) by interfering with a railway, the railway manager for the railway may, by written notice, require the person to rectify the interference within a stated reasonable time.

(2) The person must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty - 40 penalty units.

(3) If the person does not comply with the requirement, the railway manager may rectify the interference.

(4) The person must pay the manager the manager's costs of -

(b) altering the construction, maintenance or operation of the railway because of the interference.

A person must not intentionally or recklessly trespass on a railway.

1. Offence to contravene direction or requirement of police officer

(1) This section applies if a person is given a requirement or direction under this Act and no other penalty is expressly provided for a contravention of the requirement or direction.

(2) A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse.

(3) However, for a contravention of a requirement made by a police officer under section 17 or 18, the person may be prosecuted for a contravention of the relevant authorising law or subsection (2), but not both.

(4) Unless otherwise expressly provided, it is a reasonable excuse for a person not to comply with a requirement or direction to give information if giving the information would tend to incriminate the person.

(5) It is not a reasonable excuse for a person not to comply with a requirement or direction given by a police officer under chapter 17 that complying with the requirement or direction would tend to incriminate the person.

• [4] The prosecutor outlined the allegations against the Appellant at the commencement of the hearing before the Acting Magistrate. The prosecutor said:

At about 5am on Wednesday 21st November 2018 the defendant has unlawfully trespassed onto the offence location, namely rail infrastructure, located at the Buckley Road Rail Station, Bowen, and placed and attached a tripod structure onto the railway line; the defendant has then climbed to the top of the structure, railway control were contacted by someone, likely protestors, and advised that the defendant is at the offence location; as a result of the defendant's actions, normal rail traffic was unable to travel along that section of railway line, therefore interfering with normal operation of that railway track. The complainant company, Aurizon, is the rail company responsible for operations on that section of rail track.

• [5] When police arrived they observed the Appellant at the top of the tripod structure. The attending officer, Sergeant Ray Gregory, issued the defendant with a direction to leave the offence location but the Appellant did not comply with this direction. The Appellant was placed under arrest for the above three offences.
• [6] After approximately three hours, the Appellant came down from the structure and surrendered to police. The Appellant was charged in the Bowen Watchhouse and granted bail to attend court on 11 December 2018.
• [7] I viewed a DVD admitted into evidence, which showed the circumstances of the offences and the interaction between the Appellant and the arresting officer on the scene. The alleged allegations made against the Appellant by the prosecutor as outlined in the transcript accords with what I viewed on the DVD recording.
• [8] The Appellant stated to the Acting Magistrate:[1]

We've seen video footage of myself up on the line. I've admitted to the facts and said that this is - you know - what I've done. I'm happy to admit to the QP9. Again I don't see how this is relevant to the court or the act on the day.

• [9] The Appellant was self-represented at trial, but was allowed to have a friend assist him. It is common ground the Appellant admitted the facts, and the trial was to proceed on the sole issue of whether s 25 of the Criminal Code Act 1899 (Qld) ("Criminal Code") excused the Applicant's conduct.

• [10] Section 222(1) of the Justices Act 1886 (Qld) ("Justices Act") provides as follows:

(1) If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.

• [11] Pursuant to s 223(1) of the Justices Act an appeal under s 222 is by way of rehearing on the evidence given in the proceedings before the justices. However, pursuant to s 223(2), leave may be granted to adduce fresh, additional or substituted evidence if the court is satisfied there are special grounds for giving leave.

223 Appeal generally a rehearing on the evidence

(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

(2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.

(3) If the court gives leave under subsection (2), the appeal is -

(a) by way of rehearing on the original evidence; and

• [12] Section 225 of the Justices Act sets out the powers of a judge on hearing the appeal which states as follows:

(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

(2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.

(3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.

(4) An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.

• [13] To succeed on appeal, the Appellant must show the Magistrate made a legal, factual or discretionary error.[2] In Teelow v Commissioner of Police,[3] Muir JA stated:[4]

It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ...

• [14] In House v King the court stated:[5]

But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. 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. 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.

• [15] As stated, the Applicant has sought leave to include the later appeal against conviction. The Appellant originally filed a Notice of Appeal on 28 June 2019 in respect of the sentence imposed by the Acting Magistrate. At this time, the Appellant was self-represented. On 29 August 2019, the Appellant sent by email a further Notice of Appeal stating he intended to appeal against conviction. It is clear the Appellant was advised to appeal against conviction upon obtaining representation. The grounds of appeal are articulated such that it is clear an appeal against conviction is at least warranted. I proceed on the basis the appeal is against both conviction and sentence.
• [16] The Amended Notice of Appeal included the following grounds in respect of conviction:
  1. The Magistrate erred in one of (sic) more of the following:

(a) Considering the element "interference" had been established;

(d) Failing to take into account and properly apply s 24, mistake of fact, concerning the Defendant's beliefs as it informed s 25, sudden or extraordinary emergency;

(e) Determining that s 25 did not arise on the evidence.

1. The Defendant was denied procedural fairness and/or denied a fair trial hearing in one or more of the following;

(a) The Prosecution failed to call the prosecution witness from Aurizon;

(b) The Magistrate failing to inform the Applicant of steps that could have allowed Dr Lang's evidence to have been led;

(c) Depriving the Applicant of making a free and properly informed choice as to giving evidence resulting from;

1. The Magistrate wrongly telling the Applicant s 25 was not open on the evidence;
2. Effectively reversing the onus of proof as to s 25.

(d) The Applicant when giving his evidence, being prevented from;

1. Giving evidence from the bar table;
2. Referring to any documents;
3. Refreshing his memory.

• [17] It further set out the following grounds in respect of sentence:
  1. The sentence imposed was manifestly excessive;
  2. The defendant was denied procedural fairness and/or denied a fair hearing in relation to the labour component of the restitution/compensation;
  3. The Magistrate erred in one or more of the following;

(a) Imposing a penalty for trespassing upon the railway;

(b) Taking into account the unavailability of a prison sentence;

(c) Taking into account that police were taken off their duties; and/or

(d) Ordering forfeiture of the phone and charger when s 719 of the Police Powers and responsibilities Act 2000 had not been complied with.

• [18] In respect of sentence, the Respondent conceded the sentence was excessive. The sentence of the Acting Magistrate consisted of total fines of $7,000 and compensation in the sum of $2,233.40. It is agreed a fine of approximately $3000 was appropriate. This will be dealt with further later.

• [19] At trial, the Appellant gave evidence and called two witnesses, namely, Dr Nicole Rogers and Professor Brendan Mackey. They gave evidence with respect to the effect of global warming and climate change in the Queensland area. The Appellant also wished to call Dr William Laing, but this was not allowed on the basis the Appellant had not provided the expert report to the prosecution prior to the time of the hearing.[6] Criminal Code s 590B provides:

(1) If an accused person intends to adduce expert evidence in relation to an issue in the person's trial, the person must -

(a) as soon as practicable - give the other parties to the trial written notice of the name of the expert, and any finding or opinion he or she proposes to adduce; and

(b) as soon as practicable before the trial date - give the other parties to the proceeding a copy of the expert report on which the finding or opinion is based.

(2) The directions judge under section 590AA or trial judge may fix times for compliance with subsection (1).

• [20] The Appellant seeks leave to adduce fresh evidence. Namely,

(i) Affidavit of the Appellant filed 31 January 2020;

(ii) Further affidavit of the Appellant filed (date unknown);

(iii) Affidavit of Benedict Coyne filed 31 January 2020 (attaching an affidavit of William Peter Laing sworn 18 February 2020);

(iv) Affidavit of Shariff L Edres filed 14 February 2020;

• [21] For the reasons which shall become apparent, leave is refused to adduce fresh evidence.

• [22] The Appellant argues the admissions by the Appellant did not prove the elements of the offence. In his reasons, the Acting Magistrate stated:

"putting aside the element of reasonable excuse for not complying with the police direction issued by Sergeant Ryan Gregory in relation to Charge 3 the defendant has admitted all elements of the three offences."

• [23] Given the admission of the facts made by the Appellant, this is a perfectly reasonable and logical finding to be made by the Acting Magistrate. I am satisfied the Acting Magistrate did not misdirect himself with respect to the failure to call somebody from the railway to give evidence about the interference as it was never an issue before the Magistrate. The Appellant had admitted to the elements of the offence in admitting the facts alleged against him.
• [24] In respect of Criminal Code s 25, the Acting Magistrate noted in his reasons:

"essentially the defendant submitted that he felt compelled to act as he did in attaching himself to the tripod suspended over the rail line, as a non-violent act of civil disobedience due to the lack of action being taken to address the imminent threat of climate change."

• [25] The Appellant gave evidence climate change was an imminent and ongoing threat to civilisation, of which he had been aware for more than 30 years. He further indicated persons are dying as a result of fires and droughts caused by climate change. He felt compelled to take action as no action was being taken by governments or persons in authority. In this regard, the Acting Magistrate stated:

"It is clear from the authorities that for a s 25 defence to be successful, there must be an urgent situation with reasonable belief of imminent danger and the committing of an unlawful act being the only reason and practical alternative to avoid such danger. As well, the unlawful act done to avoid the danger must not be out of proportion to the danger involved.

In my view, in order that a s 25 defence be raised on the evidence, it would be necessary that there was evidence before the court, that the defendant honestly believed on reasonable grounds that he or others were placed in sudden or imminent danger that he was required to act as immediately as a response to that dangerous situation."

• [26] According to the Appellant, the "imminent danger" was the effects and consequences of climate change coupled with the lack of action being taken by authorities to address this issue. The Acting Magistrate noted:

"In my opinion the defence under s 25 was not properly raised on the evidence. The defendant was not required to act immediately in response to being confronted with a sudden imminent emergency or state of danger. The defendant's own evidence was that he had held personal beliefs on the dangers of climate change for a number of years. Put simply, on the evidence, and in the circumstances existing at the time, the defendant was not confronted with a situation amounting to a sudden or extraordinary emergency as provided for in s 25."

• [27] Later, the Acting Magistrate stated in his reasons:

"I am satisfied beyond reasonable doubt that an ordinary reasonable person, possessing ordinary powers of self-control would certainly not have acted as the defendant did in committing the three offences before the court. The defendant's belief that he had exhausted all lawful ways to convince relevant authorities to take action to address the issue of climate change is not relevant as a defence. Likewise, the defendant's self-indulgent, subjective belief that he was morally obliged to take personal responsibility to combat climate change does not excuse his unlawful behaviour. Section 25 does not provide a lawful excuse for a person who knowingly breaks the law, as a planned and premeditated act of civil disobedience in pursuance of their own self-driven subjective, environmental, social or moral agendas. In the present case, clearly there was no legal excuse or privilege extended to the defendant to act as he did on the grounds of necessity and response to a perceived moral obligation or responsibility to combat the lack of action being taken by authorities in relation to the effects of climate change."

• [28] The Acting Magistrate went on to make a formal finding the Appellant had no reasonable excuse for contravening the direction issued by Sergeant Gregory to immediately leave the offence location.
• [29] The Appellant submits the Acting Magistrate fell in to error because:

(a) the incorrect comparator was considered which resulted in the incorrect application of Criminal Code s 25.

(b) The interplay between Criminal Code s 24 and s 25 was not considered which resulted in the incorrect application of s 25.

(c) The Magistrate expressly considered there had to be an emergency that was imminent or immediate, and some level of immediate risk of harm for the defence under Criminal Code s 25 to apply. Thus, he limited the consideration of whether s 25 arose to only matters that were of an "imminent danger" and in doing so the Magistrate erred in limiting s 25 in that way.

(d) The Magistrate in considering that the step taken by the Applicant must need to have been the only step that was able to be taken was an error. Merely because the Applicant could have engaged in other forms of protest or spoken to a member of parliament, was not the correct test.

(e) The Magistrate did not properly consider the reasonableness of the Applicant's actions with adequate regard to proportionality.

(f) The reliance on planning" by the Magistrate as a means to rationalise Criminal Code s 25 not arising, overlooks a number of features of the law.

• [30] Each of these grounds was expanded in some detail by the Appellant's counsel both in written and oral submissions.
• [31] The Respondent submits the Acting Magistrate did not fallen in error and the conviction should not be overturned. The Appellant admitted the elements of the charges when he admitted the facts and no defence under Criminal Code s 25 was available. Ultimately, it is submitted the appeal against conviction should be dismissed.

• [32] Most notable for the purposes of this appeal is the interplay of Criminal Code ss 24 and 25. In my view, this is the foundation of this appeal. If the Acting Magistrate misdirected himself about the defences, the appeal should be allowed. If not, there is in my view no need to consider if the fresh evidence should be allowed as it goes only to the state of mind of the Appellant.

(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.

• [33] Criminal Code s 24 was not raised before the Acting Magistrate, only s 25. The Acting Magistrate considered:

[The Appellant's] repeated reference to the emergency as the Applicant perceived it to be where it was clearly stated by him during submissions, objections to evidence, and his evidence which he was forced to give. He held a genuinely held belief as to the state of emergency. The belief extended to, and was informed by his own experience, his acquired knowledge, climate action in the United Kingdom, climate action in Sydney, and local matters specifically referencing Adani (though he was limited in presenting his case in some of these respects) as set out herein.

• [34] In Webster & Co v Australasian United Steam Navigation Co Ltd,[7] s 24 and s 25 were described as rules of common sense as must as rules of law. For the following reasons Criminal Code ss 24 and 25 do not apply.

• [35] In respect of Criminal Code s 25, I note the reasons of the court in R v Dimitropoulos,[8] where Brown J noted:

The learned trial judge, in the present case, accepted that the phrase "sudden or extraordinary emergency" in s 25 of the Queensland Criminal Code may be read disjunctively, such that sudden is separate from extraordinary, however, he considered that there must still be an emergency which requires immediate action, applying the principles outlined in R v Gardener.

In that case, the trial judge found there was insufficient evidence to establish an extraordinary emergency. The defendant tried to argue he grew cannabis as a last resort to self-medicate for pain suffered as a result of injuries sustained in a car accident.

The defendant to criminal proceedings bears the evidential burden of raising a defence under s 25 of the Criminal Code. The test is whether there is "evidence which, taken at its highest in favour of the accused, could lead a reasonable jury properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived". Once raised, the onus then falls on the crown to negative the defence beyond reasonable doubt.

In R v Gardner, Atkinson J referred to the decision of R v GV, in which this Court found that there were facts establishing a defence of extraordinary and sudden emergency. In that case, the defendant was charged with dangerous driving causing grievous bodily harm, in circumstances where he was being chased by "skinheads" and "he and the passengers in his vehicle had been attacked and threatened", including while stopped at a red light. The case was described by Atkinson J as "extremely unusual". Her Honour accepted the submission of the Crown that the cases which followed R v GV in the Court of Appeal "show the limitations on the defence, that it is limited to cases where the defendant is confronted by sudden and extreme circumstances and where the danger is imminent and extreme". Her Honour stated that that submission was further supported by the ordinary meaning of the words and by the common law. In particular, her Honour referred to the definition of "emergency" appearing in the Oxford English Dictionary, as being "a juncture that arises or turns up, especially a state of things unexpectedly arising and urgently demanding immediate attention".

• [38] Whilst it was noted "extraordinary" does support the fact the emergency may develop over time, for example rising flood waters, "there must be an emergency of such a scale that it requires immediate action, commensurate with the consideration of self-control. As Atkinson J stated, it is a section which is directed to a person reacting to imminent danger".[11]
• [39] Her Honour also noted the following discussion of Gleeson CJ in R v Rogers was apt in that case:[12]

The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law.

The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined.

• [40] Whilst as I said, the Appellant was convinced the damage being done to the planet by global warning created a sudden or exceptional emergency justifying his actions, the Acting Magistrate was not satisfied such a sudden or extraordinary emergency did exist which would afford the Appellant a defence under s 25 of the Criminal Code. I agree with the reasoning of the Acting Magistrate that the emergency of climate change does not rise to the level of sudden or extraordinary. Whilst some may argue climate change is an extraordinary emergency, I note an emergency for the purposes of s 25 must require immediate action. On the Appellant's own submission he has been aware of the threat of climate change for more than 30 years.

• [41] Criminal Code s 24 provides an excuse from criminal responsibility for a person who does or omits to do an act under an honest and reasonable, but mistaken belief in the existence of any state of things, to the same extent as if the real state of things had been such as the person believed to exist.
• [42] In R v GV at [28] and [29] it was said:[13]

"[28] The defences available under s 24 and s 25 of the Criminal Code may work in combination so that the existence of an emergency can either be actual or the product of an honest and reasonable, but mistaken, belief.

[29] Section 25 is certainly available as a defence to a dangerous driving charge. In R v Warner Andrews J, giving the judgment of the court, relevantly wrote at 210:

'There is quite a significant body of evidence to the effect that a rather terrifying situation may have been created by the driver of the other vehicle and that the accused may have been acting in response to it from fear and to avoid the risk of harm at the hands of the other driver. With proper directions there remains a case under s 328A of the Code for consideration by the jury.'

Andrews J held that for that driver, a defence based on either s 24 or s 25 of the Code was available in that case. ..."

• [43] Here, in my view, the appellant honestly and reasonably believed there was a "climate change emergency"; that is, he genuinely believed it, and in his particular circumstances, on reasonable grounds.[14]
• [44] However, I am not satisfied the appellant had an honest and reasonable belief climate change was such an imminent danger to the world to the extent that if that was the real state of things he would be excused from criminal responsibility. The appellant is a recidivist protestor who travelled from his home in Victoria with the intention of disrupting the delivery of coal by train from the Adani coal mine. Therefore, in the Appellant's mind, climate change was not such an imminent threat that he had to protest immediately in Victoria. He was satisfied he had time to travel to Queensland and obtain the necessary equipment.

• [45] For the reasons I have stated, the Appellant's contention he is entitled to a defence under either Criminal Code ss 24 or 25 or both is erroneous. Accordingly, the submission the Appellant was not permitted to call further evidence as to either his fervent belief of the adverse effects of climate change or the effect of climate change on the environment generally is misconceived as the evidence could not support a defence never open to the Appellant. The Acting Magistrate did not in my view misconduct himself. Accordingly, the appeal against conviction must be dismissed.

• [46] As discussed, it is agreed a sum of approximately $3,000.00 was more appropriate. The sentencing principles applicable to assessing the amount of any fine to be imposed in cases involving protesting is now well established.[15] I note in particular the comments of Fantin DCJ in GS v QPS at [71] to [72]:[16]

I also respectfully agree with his observations in Avery at [81] that whilst offending committed in the course of a peaceful protest would not generally impute a high level of culpability, and while the conscientious motives of protestors are to be taken into account, whether the protestors have behaved with a sense of proportion by not causing excessive loss, damage or inconvenience by their protest actions will be an important consideration in assessing the objective seriousness of the offending and the culpability of the offenders involved. I would add to that whether the disruption caused was the intended aim of the protest, rather than merely a side effect or consequence of a protest held in a public place, may also be relevant.

As a matter of general sentencing principle, the motive for the commission of the offence will often be relevant to the moral culpability of the offender, the weight to given to personal deterrence and it may affect the weight to be given to general deterrence.

Under the Penalties and Sentences Act 1992 motive may arise in consideration of the nature and circumstances of the offence: s 9(2)(c); the presence of any aggravating or mitigating factor concerning the offender: s 9(2)(g); and any other relevant circumstance: s 9(2)(r).

• [47] Accordingly, the Appellant is convicted and fined $3,000. Conviction is recorded.

• [48] As the sentence imposed by the Acting Magistrate has been set aside, it is necessary for me to consider the discretion of compensation afresh. Further submissions were made on 19 November 2020 on whether a further order as to compensation should be made. Under s 35 of the Penalties and Sentence Act 1992 (Qld) ("PSA") the court may order the offender make restitution or pay compensation. The issue in this case is whether the Appellant should be subject to a compensation order pursuant to PSA s 35(1)(b):

(b) pay compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property -

(i) in relation to which the offence was committed; or

(ii) in the course of, or in connection with, the commission of the offence.

• [49] In general, orders for criminal compensation are made on the basis of ordinary principles of civil liability and assessment for loss and damage.[17] A wide meaning to the various terms used in PSA s 35 is to be applied in accordance with the approach adopted by the Court of Appeal in R v Ferrari. It is inappropriate to adopt any narrow or technical meaning.[18]
• [50] Aurizon should not experience a windfall gain.[19] It is clear the Appellant is "...liable under s 35(1)(b) only for so much of the loss or damage as was sustained in the course of, or in connection with, the offence of unlawful use which he himself committed."[20]
• [51] In my opinion, it is entirely inappropriate to make any order for compensation for the wages of the crew. Uncertainty as to the extent of any recovery is a discretionary factor favouring refusal to make a compensation order.[21] No evidence was produced to allow me to determine whether the crew utilised were already working on the date of offence or were brought in specifically for the purposes of removing the protestor.
• [52] However, the hiring of the cherry picker to dismantle the tripod was a reasonable foreseeable consequence of the Appellant's unlawful interference with the railway. The use and cost of the cherry picker is clear from both the video footage and invoice tendered. It follows compensation in the sum of $638.40 for its hire should be allowed.

• [53] Accordingly, I make the following orders:
  1. Leave to amend the Notice of Appeal out of time is allowed.
  2. Appeal against conviction is dismissed.
  3. Application to adduce fresh evidence is dismissed.
  4. Sentence imposed by the Acting Magistrate is set aside.
  5. The Appellant is re-sentenced to as follows:

1. The Appellant is convicted and fined $2,361.60 (that is, $3,000 less the amount of compensation ordered in paragraph (c)). 2. Conviction is recorded.

1. The Appellant is ordered to pay Aurizon compensation in the sum of $638.40. 6. The Appellant's mobile phone is to be returned to him. 7. No order as to cost.

[1] Transcript of Magistrates Court proceedings, 17.

[2] Forrest v Commissioner of Police [2017] QCA 132, 4; Coal and Allied Operations Proprietary Limited v Australian Industrial Relations Commission (2000) 293 CLR 194; Fox v Percy (2003) 214 CLR 18; Teelow v Commissioner of Police [2009] QCA 84; Tierney v Commissioner of Police [2011] QCA 327, [26].

[3] Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489.

[4] Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, [4].

[5] House v King (1936) 55 CLR 499, 404-405.

[7] Webster & Co v Australasian United Steam Navigation Co Ltd [1902] St R Qd 207, 217

[8] R v Dimitropoulos [2020] QCA 75, [51].

[9] R v Dimitropoulos [2020] QCA 75, [58].

[10] R v Dimitropoulos [2020] QCA 75, [60].

[11] R v Dimitropoulos [2020] QCA 75, [62].

[12] R v Dimitropoulos [2020] QCA 75, [66]-[67].

[13] R v GV [2006] QCA 394

[14] R v Julian [1998] QCA 119; (1998) 100 A Crim R 430, 434; R v Mrzljak [2004] QCA 420; [2005] 1 Qd R 308, 321; R v Wilson [2008] QCA 349; [2009] 1 Qd R 476, [20].

[15] Avery & Ors v Queensland Police Service [2019] QDC 21; Nolin v Commissioner of Police [2019] QDC 171; GS v QPS [2020] QDC 205.

[16] GS v QPS [2020] QDC 205, [71]-[72] (citations removed).

[17] Berceanu v Buttriss & Anor [2004] QDC 20, [6] citing R v Ferrari [1997] QCA 73; [1997] 2 Qd R 472, 477.

[18] Berceanu v Buttriss & Anor [2004] QDC 20, [20].

[19] Berceanu v Buttriss & Anor [2004] QDC 20, [19]-[21].

[20] R v Ferrari [1997] QCA 73; [1997] 2 Qd R 472, 12.

[21] Berceanu v Buttriss & Anor [2004] QDC 20, [22].