Andrews v Rockley

DISTRICT COURT OF QUEENSLAND

CITATION:

Andrews v Rockley [2008] QDC 104

PARTIES:

ADAM WILLIAM ANDREWS

(Appellant)

v

SHANE ALAN ROCKLEY

(Respondent)

FILE NO/S:

D 2469 of 2007

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

7 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

11, 25 February and 18 March 2008

JUDGE:

Rackemann DCJ

ORDER:

Appeal allowed, conviction set aside and verdict of not guilty entered

CATCHWORDS:

Appeal – nude sunbathing – conviction for committing a public nuisance – whether acting Magistrate misunderstood evidence – whether behaviour disorderly or offensive – reasonable doubt – mistake of fact

COUNSEL:

Ms K Greenwood for the appellant

Ms Rutherford for the respondent

SOLICITORS:

O’Shea Lawyers for the appellant

Director of Public Prosecutions for the respondent

1. On 17 March 2007 the appellant was nude sunbathing on a beach when he was approached by two police officers, Senior Constable Rockley and Constable Winnett. He was subsequently charged, under s 6 of the Summary Offences Act 2005, with one count of committing a public nuisance. The prosecution relied, in particular, on the visibility of the appellant’s penis as he lay naked on the beach. Upon his trial before acting Magistrate Hasted, the appellant was found guilty, fined $100 and ordered to pay $118 court costs. No conviction was recorded. The appellant appeals against his conviction.

1. Section 6 of the Summary Offences Act provides relevantly as follows:

“6         Public nuisance

(1)        A person must not commit a public nuisance offence.

Maximum penalty—10 penalty units or 6 months imprisonment.

(2)        A person commits a public nuisance offence if—

(a)       the person behaves in—

(i)        a disorderly way; or

(ii)      an offensive way; or

…. and

(b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

…”

1. The learned acting Magistrate found that “at the very least” the appellant had engaged in behaviour which was disorderly and was likely to interfere with the peaceful passage through a public place by a member of the public. It was submitted, on behalf of the appellant that, in so finding, the learned acting Magistrate erred in a number of respects, which may be summarised as follows:

(1)         The learned acting Magistrate misunderstood the evidence and inappropriately described the appellant’s evidence as self-serving and contradictory.

(2)          On the facts found, the appellant’s conduct ought not to have been held to be:

(A)       disorderly; or

(B)       likely to interfere with the peaceful passage through a public place by a member of the public; and

(3)         The learned acting Magistrate failed to consider the defence of mistake of fact, which was raised on the evidence (although not dealt with in submissions at first instance) but not negatived.

1. It is common ground that:

(i)          On 17 March 2007 the appellant was nude sunbathing on the beach.

(ii)         Four-wheel drive vehicles were permitted to travel along the beach, subject to regulation and, on the day in question, four-wheel drive vehicles,…