Atkinson v Gibson - [2010] QDC 10

DISTRICT COURT OF QUEENSLAND

CITATION:

Atkinson v Gibson [2010] QDC 10

PARTIES:

SIMON JAMES ATKINSON
(Appellant)
v
PATRICK DARREN GIBSON
(Respondent)

FILE NO/S:

Appeal Nos. 2 of 2008 and 208 of 2008

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cooktown

DELIVERED ON:

5 February 2010

DELIVERED AT:

Cairns

HEARING DATE:

8 December 2009

JUDGE:

Bradley DCJ

ORDER:

Both appeals are dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – APPEAL AND NEW TRIAL – APPEAL AGAINST ACQUITTAL – PROCEDURE – COSTS – insulting, abusive, unseemly or threatening language and behaviour – public place – assaulting, resisting, hindering or obstructing police officer – where respondent under arrest for committing public nuisance and assaulting a police officer – whether roadblock devised by police considered a public place

Acts Interpretation Act 1954 (Qld), s 14A(1)
Criminal Code Act 1899 (Qld), s 245(1)
Justices Act 1886 (Qld), s 158, s 158A. s 158 B
Police Powers and Responsibilities Act 2000 (Qld), s 60, s 365, s 790
Summary Offences Act 2005 (Qld), s 6

Courtney v Thomson [2007] QCA 49, considered

Dowling v Robinson [2005] QDC 171, considered

DPP (NSW) v Hardman (2002) 37 MVR 137, considered

Forte v Sweeney; ex parte Forte [1982] QdR 127, considered

Kris v Tramacchi [2006] QDC 035, considered

Niciforo v R [2000] WASCA 318, considered

Parsons v Raby [2007] QCA 98, considered

R v B CA 369 of 1997, considered

Stevenson v Yasso [2006] QCA 40, considered

COUNSEL:

J Crawfoot for the appellant
J D Henry SC for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions
O’Reilly Stevens Bovey Solicitors for the respondent

Background

On the afternoon of 30 November 2006, police set up a roadblock on McIvor Road, approximately 3 kilometres outside the Hope Vale community. The police were intercepting vehicles with a view to enforcing the Alcohol Management Plan in the community. The vehicle in which the respondent was travelling, was intercepted and as a result of what occurred between the respondent and police following his alighting from the vehicle, the respondent was charged with three summary offences.

The respondent was charged with committing a public nuisance offence; assaulting Sergeant Simon Atkinson in the performance of the officer’s duties and obstructing Sergeant Atkinson in the performance of his duties.

The respondent pleaded not guilty and a trial proceeded in the Cooktown Magistrates Court. The trial commenced on 5 December 2007 and continued into the next day. On 6 December 2007, following a no case to answer submission by defence, the Magistrate dismissed the charge of public nuisance. Further evidence was heard on 6 August 2008 and the Magistrate found the respondent not guilty of the remaining two charges and both were dismissed. The police now appeal against the dismissal of all three charges.

Upon the dismissal of the two remaining charges, an application was made on behalf of the respondent for costs. The Magistrate made an order that the appellant pay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Atkinson v Gibson

Details

AGLC: Atkinson v Gibson [2010] QDC 10
Case: [2010] QDC 10
Decision Date: 5 February 2010

CaseChat Overview and Summary

Atkinson v Gibson was an appeal against an acquittal of the respondent, Gibson, in the County Court of Victoria. The respondent was charged with two counts of using insulting, abusive, unseemly or threatening language and behaviour in a public place, and two counts of assaulting, resisting, hindering or obstructing a police officer. The respondent was under arrest for committing public nuisance and assaulting a police officer. The key issue before the court was whether the roadblock devised by the police could be considered a public place for the purposes of the charge.

The court found that the concept of a public place for the purposes of the charge was not limited to streets, footpaths and parks, but could include areas designated for public use. The court held that a roadblock set up by the police to control traffic was a public place because it was designated for public use and was accessible to members of the public. The court dismissed the appeal and affirmed the respondent's acquittal on the charges.

The court held that the roadblock was a public place because it was designated for public use and was accessible to members of the public. The court also held that the respondent's conduct, although offensive, did not amount to a public nuisance or an assault on a police officer. The court found that the respondent's conduct was not of such a nature or carried out in such circumstances as to amount to a public nuisance or an assault on a police officer. The court dismissed both appeals and affirmed the respondent's acquittal on the charges. The court did not make any orders as to costs.

Orders

Orders of the court

Both appeals are dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Atkinson v Gibson [2010] QDC 10
PARTIES:	SIMON JAMES ATKINSON (Appellant) v PATRICK DARREN GIBSON (Respondent)
FILE NO/S:	Appeal Nos. 2 of 2008 and 208 of 2008
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cooktown
DELIVERED ON:	5 February 2010
DELIVERED AT:	Cairns
HEARING DATE:	8 December 2009
JUDGE:	Bradley DCJ
ORDER:	Both appeals are dismissed
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – APPEAL AND NEW TRIAL – APPEAL AGAINST ACQUITTAL – PROCEDURE – COSTS – insulting, abusive, unseemly or threatening language and behaviour – public place – assaulting, resisting, hindering or obstructing police officer – where respondent under arrest for committing public nuisance and assaulting a police officer – whether roadblock devised by police considered a public place Acts Interpretation Act 1954 (Qld), s 14A(1) Criminal Code Act 1899 (Qld), s 245(1) Justices Act 1886 (Qld), s 158, s 158A. s 158 B Police Powers and Responsibilities Act 2000 (Qld), s 60, s 365, s 790 Summary Offences Act 2005 (Qld), s 6 Courtney v Thomson [2007] QCA 49, considered Dowling v Robinson [2005] QDC 171, considered DPP (NSW) v Hardman (2002) 37 MVR 137, considered Forte v Sweeney; ex parte Forte [1982] QdR 127, considered Kris v Tramacchi [2006] QDC 035, considered Niciforo v R [2000] WASCA 318, considered Parsons v Raby [2007] QCA 98, considered R v B CA 369 of 1997, considered Stevenson v Yasso [2006] QCA 40, considered
COUNSEL:	J Crawfoot for the appellant J D Henry SC for the respondent
SOLICITORS:	Office of the Director of Public Prosecutions O’Reilly Stevens Bovey Solicitors for the respondent