Temoannui v Ford [2009] ACTSC 69

3. On 17 December 2008, the appellant filed notice of appeal seeking to have the finding of guilt and, consequently, the penalty imposed, set aside with costs.

4. The charge engaged s 4 of the Crime Prevention Powers Act 1998 (ACT) (the CPP Act). That section provides:

Move-on powers

(1) This section applies if there are reasonable grounds for a police officer to believe that a person in a public place has engaged, or is likely to engage, in violent conduct in that place.

(2) The police officer may direct the person to leave the vicinity of the public place.

(3) The direction may be made subject to either or both of the following conditions:

(a) if the police officer has reasonable grounds for believing that the person is likely to engage in violent conduct while, or immediately after, leaving the vicinity by a particular route - that the person leave the vicinity by a different route (whether the route is stated or unstated);

(b) that the person not return to the vicinity for a stated period of not longer than 6 hours.

(4) A person must not, without reasonable excuse, contravene a direction (including a condition of a direction) given to the person under subsection (2).

Maximum penalty: 2 penalty units. [that is, $200]

...

5. The evidence for the prosecution was not factually challenged. The statements of Constable Brett Ford, Constable Joshua Sing and Sergeant Reece Strachan were tendered by consent. Sergeant Strachan was not present when the original direction to move on was issued to the appellant but was present when he was arrested for contravention of it.

6. In essence, as Constable Ford recounted in his statement, at about 12.45 am on 18 March 2008 he attended with Constable Sing at "Green Square, Jardine Street, Kingston in the Australian Capital Territory". He observed the appellant in conversation with a female. The appellant's precise location was not mentioned but the report given to Constable Ford was that the appellant had been twice ejected from "Filthy McFaddens" (Filthy's), a licensed bar with an "Irish Pub" theme. It may be assumed that the appellant was outside those premises in the public area of Green Square. Constable Ford asked the appellant for identification on the basis of the reports he had received that the appellant had been involved in fights at Filthy's. The appellant offered his correct name and address but became abusive and aggressive. He was a large man of Maori appearance. His behaviour, it was conceded, gave Constable Ford reasonable grounds to believe that not only were the reports of his earlier violent conduct likely to be true but that he was likely to engage in violent conduct in the vicinity of Filthy's if he remained there.

7. Accordingly, Constable Ford purported to exercise the power conferred by s 4(2) of the CPP Act. He did so in the following terms:

I am now issuing you a direction to move on, that means you are to leave the area in the direction I indicate to you and that you are not to return to Filthy McFaddens or Green Square for six hours, if you return you may be arrested. Do you understand?

8. The appellant replied, "Well, which direction do I go?"

9. Constable Ford indicated Eyre Street, a street bounding the eastern side of the area known as Green Square.

10. The appellant clarified that aspect of the direction and left as so directed.

11. At this point, it should be observed that Green Square is an area of concrete concourses and parkland, once containing green grass, in front of buildings facing Jardine Street to the north and Eyre Street to the east. The open public area known as Green Square is the open space, roughly square, bounded by Jardine Street up to Eyre Street and then by Eyre Street in front of an "L" shaped line of buildings with access to the south through a passageway in front of Filthy's from Highgate Lane.

12. At the rear of the buildings fronting on to Green Square is the public street known as Highgate Lane. It is predominantly a service lane but contains some parking. It also serves the rear of all the other Kingston Shops being those to the west and south of the buildings fronting Green Square bounded by Kennedy Street and Giles Street.

13. At about 1.35 am on 18 March 2008 Constable Ford, with Constable Sing and Sergeant Strachan, attended the area of Highgate Lane. There was in that area a rear entrance, able to be used by the public, to Filthy's. The appellant was observed about four metres away from that entrance near a vehicle.

14. Constable Ford, without enquiry as to the reason for the appellant being in that area, said to him:

You are under arrest for contravening an order to move on.

15. The appellant, in an aggressive manner, responded:

Fuck off, I have just come back here to pick up some friends.

16. After some further aggressive displays the appellant finally submitted to arrest.

17. A photograph of the area was tendered. It shows in the foreground a building having a green awning with the words "Filthy McFaddens" in Gaelic-style script and to the left and above that the words "GREEN SQUARE CENTRE".

18. The statement tendered used the word "direction" rather than "directive" as Constable Ford stated in his oral evidence but nothing turns on that.

19. Mr Archer, for the appellant, tendered to her Honour maps showing the area of "Green Square". It suffices to say that those maps do not include Highgate Lane as part of Green Square.

20. Mr Archer's first point was that the appellant when directed to leave did so, hence he would not have contravened the direction to leave even if he had returned to Green Square. The charge, in other words, should have alleged contravention of a condition of the direction by returning to "the vicinity" of Green Square.

21. The prosecutor contended that the "direction" included the condition not to return and that it was enough to contravene that condition that the appellant was "near" to both Green Square and Filthy's. He was, the prosecutor submitted "testing the limits" of where he could be. He supported that contention by reference to the presumed intention of the legislature to prevent trouble which could well have arisen from the appellant lurking near the rear of Filthy's as much as if he had loitered in Green Square in front of Filthy's. He complained that if the direction was to be confined to its stated terms it would require police to specify with great detail the areas to vacate and stay away from so as to avoid the potential for violence the direction was seeking to avert. That, he submitted, was not a "very realistic" requirement.

22. Her Honour, whilst acknowledging that the direction had been not to come back into Green Square, stated:

... he went around the block and came into the car park at the back of Green Square. I'm not going to construe it in such a narrow term that when someone is told, and made clear that in no uncertain terms is he not to go anywhere near a particular place, being the pub, and a particular area, being Green Square in Kingston.

Had he been in any other part of Kingston the difficulty wouldn't arise, but he's actually standing in a place which says on the sign here, on this photograph that was tendered "Green Square Centre". That's where he is, that's what it says, "Green Square Centre", and that's where he is. So he deliberately - he understood the direction and he deliberately contravened the direction. I'm not going to find that the back of a car park of a particular building is not - or a particular area does not form part of that area.

And it's rather mischievous of him to think that he can get away with being told not to come back to a certain place, for obvious reasons when he'd [sic] behaving in an aggressive manner, and then pretends that he can come around to the back of a particular car park and yet try to argue that he's not in an area where he was told not to go back. It would make a nonsense of the whole legislation if this offence wasn't made out. So I find the offence proved.

23. After submissions on penalty, the appellant was convicted and fined as previously noted.

24. It is clear that her Honour took a somewhat expansive view of the power conferred by s 4(2) and (3) of the CPP Act and of the direction given pursuant to it. If Highgate Lane was to be included within the prohibited zone it is difficult to see why the car park off Eyre Street immediately opposite or the premises across Jardine Street would not also be so included. And how would the prohibited person be aware that he or she had entered the prohibited zone unless it was specified? If the mischief to be averted was public disputation with the patrons or staff of Filthy's, why would the area where the appellant could see or call out to or even mingle with such persons outside Filthy's in the area beyond the bounds of Green Square not also be, by implication, part of the prohibited zone? Then, even if a wider zone could have been declared to be part of "the vicinity", why is the prohibited person guilty if he or she does no more than go beyond and not re-enter the zone actually specified as the prohibited zone?

25. The purpose of the CPP Act is clear. It is designed to permit a police officer to direct a person in a public place whose conduct is or is likely to be violent to leave that place. However, the Act does not impose a direct obligation on such a person to do or refrain from doing any particular act. It merely subjects such a person to an obligation to obey a direction authorised by the CPP Act. If such a direction is given it can go no further than requiring the person to leave "the vicinity" of the specified public place. Conditions authorised by s 4(3) may be imposed. A public place may have specific and obvious boundaries. It may be less well defined.

26. The Human Rights Act 2004 (ACT) (the HR Act) requires all ACT legislation to be interpreted consistently with the rights it confers. Section 13 provides:

Everyone has the right to move freely within the ACT and to enter and leave it, and the freedom to choose his or her residence in the ACT.

27. Clearly, s 4 of the CPP Act conflicts with that right. That, of course, does not imply inconsistency. All rights are subject to the provisions of s 28(1) of the HR Act.

Human Rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

28. The preamble to the Act explains that concept further:

1. Few rights are absolute. Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual's rights may also need to be weighed against another individual's rights.

29. It follows from those provisions that it can be seen as reasonable to prevent public disorder by removing from a public place persons who are or are reasonably likely to be engaging in public disorder. However, the extent to which persons are to be restricted from exercising their statutory right to freedom of movement and association must be the minimum necessary to achieve that objective.

30. In this case, the scope of the direction given to the appellant, as it was expressed, is not challenged. The question is whether it was contravened. The appellant submits that it was not. The area of Highgate Lane at the rear of Filthy's is not "Green Square" and, irrespective of whether there was power to direct not returning to Filthy's, it was not Filthy's either.

31. It was, Mr Archer submitted, irrelevant whether, in going to the car park at the rear of Filthy's, the appellant was testing the limits of the direction. The issue was whether he had breached it. It might as easily be said that he was carefully complying with the direction as given. Indeed, if he had, for example, been directed not to approach within 100 metres of Filthy's after leaving Green Square he might well have obeyed that direction and picked up his friends elsewhere.

32. The respondent submitted first, that, though the charge was literally framed in terms of not complying with the direction to leave Green Square that direction was understood by the appellant and his counsel to include the condition that he not return for six hours. Thus the allegation of contravention of the direction should be understood as referring to conduct that might breach such a condition.

33. I agree with that submission. It is consistent with s 4(4) of the Act which equates a condition (being a condition authorised by s 4(3)) with a "direction" for the purposes of s 4(4). An authorised condition is defined as part of the "direction".

34. A defendant would, of course, be entitled to particulars of the acts or omissions alleged to contravene a direction, whether it be refusing or failing to leave the specified public place or by failing to leave by the indicated route, or by returning to the public place within the time limited by the direction.

35. In the present case, I agree with the prosecutor that the respondent was informed of the substance of the contravention alleged. Neither the learned Magistrate, nor counsel for the appellant was in any doubt that the informant was alleging that being in the vicinity of the rear of Filthy's in Highgate Lane had contravened the non-return condition of the direction.

36. As the prosecutor submitted, and I agree, to "return" to a place simply means to go back to that place. However, that does not assist the prosecution as, even taking an expansive view of the place the appellant was told to depart from and not return to, the appellant did not "return" to Green Square.

37. The prosecutor contends that the direction not to return to a place includes not returning to "the vicinity" of that place. It must be acknowledged that the power to direct a person to leave a public place is expressed in terms of "the vicinity" of that place. It is "the vicinity" that the non-return condition may be expressed to apply to. The term "vicinity" is used in its ordinary sense, that is, a surrounding district or near place (see the Oxford Dictionary). In my view, the directing police officer could have defined in his direction the area of Highgate Lane as being, relevantly, the surrounding connected portion of "Green Square", or "near" to it. To be a valid direction, consistently with the HR Act, "the vicinity" would need to be confined to such area as would remove the risk of violence from the directed person but not interfere with his right to freedom of movement beyond that necessary to avert the risk of further violence.

38. Thus a direction to leave Canberra for six hours would not be authorised. A direction to leave and not return to the entire suburb of Kingston would not be warranted. However, a direction to remain a specified but reasonable distance from Green Square or, indeed, the public places near Filthy's, may well have been. However, the essence of the offence is the contravention of the direction including any authorised condition. It is not being in an area that might have been specified but was not. It was accepted that the direction could not have included a direction to leave or not enter Filthy's. I make no comment on whether that concession was rightly made and accepted but no argument was addressed to it and I therefore do not express a view on whether licensed premises then open for business are or are not public places for the purposes of the CPP Act. The direction was confined to leaving "Green Square". It would be apparent to an observer, even without the maps tendered, that Green Square was the area bounded by the curtilage of the Cusack Centre and Green Square buildings facing the paved and lawn (or formerly lawn) areas in front of those buildings up to Eyre Street to the east and Jardine Street to the north. To go beyond the boundary between those streets and the paved edges of Green Square could not reasonably be regarded as doing anything other than leaving Green Square. To take the footpath travelling west along the southern side of Jardine Street would be leaving Green Square. Similarly, to have exited into Highgate Lane would have been leaving Green Square. It was, of course, open to the informant to direct the route of departure. To regard the direction as implicitly forbidding the directed person to go to any other destination is completely impermissible. It would render a person liable to criminal sanctions for breach of an indeterminate obligation. Nor should a person be exposed to criminal sanctions for breach of an obligation that might have been imposed but was not.

39. To subject a person to such an unspecified obligation exposes a person to arbitrary arrest and detention contrary to s 18(1) of the HR Act. To illustrate that point, let it be supposed that the directing police officer considered Green Square to include all surrounding public streets and/or any public place within sight of Green Square but failed to communicate that understanding. Could it seriously be suggested that a person was liable to be arrested under the CPP Act for being, remaining in or entering such a place dependent only on the internal thought processes of the directing officer? Similarly, it is abhorrent to our system of criminal justice that a person may be liable for punishment because that person has engaged in conduct which, though not actually proscribed, could have been proscribed.

40. No doubt, in retrospect, Constable Ford would have specified Highgate Lane being the only other public place in Kingston from which Filthy's could have been accessed as an area from which the appellant should be excluded. He did not do so. He could, on finding the appellant in Highgate Lane, have issued a further direction, bearing in mind the legitimate objective of distancing the appellant from Filthy's. He did not do so. Instead he adopted an erroneous and impermissible interpretation of his original direction to found an arrest of the appellant.

41. It follows that the conviction and penalty were wrongly imposed and must be set aside. A finding of not guilty must be substituted.

42. It should be added that, in a free and democratic society a citizen is permitted to act in and to move about in public places without police interference unless such interference is warranted by law. The move on power is but one example of such a justification. A citizen is permitted not to respect a limit on his or her freedom of movement that is not imposed lawfully. If a police officer, for example, required a citizen to stop and show gestures of respect to that officer, even if it would be courteous to do so, it would not warrant arrest if the citizen declined to do so. The Act itself recognises the right to political protest. A police officer may well be offended by the affront to public order such a protest might pose. That does not entitle the officer to arrest and detain such a person without a real threat to persons or property (see Ball v McIntyre (1966) 9 FLR 237 and Forbutt v Blake (1981) 51 FLR 465.

43. Even if the officer had in his direction referred to "the vicinity" of Green Square there could well arise a question, even if objectively Highgate Lane was in "the vicinity" thereof, as to whether that would have been reasonably apparent to a person such as the appellant. It may well constitute a "reasonable excuse" for being there if he reasonably believed it was not part of the prohibited zone. It is for that reason as well that to give a direction capable of supporting a charge of contravening it, a police officer should frame a direction with sufficient precision so as to make the limits of it apparent to the person to whom it is directed.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Respondent: Director of Public Prosecutions for the ACT