Barratt v Tasmania Police

[2008] TASSC 19

[2008] TASSC 19

CITATION:              Barratt v Tasmania Police [2008] TASSC 19

PARTIES:  BARRATT, Prudence
  v
  TASMANIA POLICE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  638/2007
DELIVERED ON:  7 May 2008
DELIVERED AT:  Hobart
HEARING DATE:  8 April 2008
JUDGMENT OF:  Tennent J

CATCHWORDS:

Police – Rights, powers and duties – Other powers and duties – Police Offences Act 1935, s55 – Acting in lawful execution of duty – Reasonable belief as to state of affairs – Existence of reasonable grounds for belief.

Police Offences Act1935 (Tas), ss34B(1)(a)(i), 55.
Lajos v Samuels (1980) 26 SASR 514; Goad v Sapauskas (1991) 13 MVR 461, referred to.
Aust Dig Police [19]

REPRESENTATION:

Counsel:
             Applicant:  L Wilson
             Respondent:  S J Bender
Solicitors:
             Applicant:  Applicant in person
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2008] TASSC 19
Number of paragraphs:  21

Serial No 19/2008
File No 638/2007

PRUDENCE BARRATT v TASMANIA POLICE

REASONS FOR JUDGMENT  TENNENT J

7 May 2008

1. On 5 September 2007, Prudence Barratt ("the applicant") was found guilty by a magistrate following a hearing of wilfully obstructing a police officer contrary to the Police Offences Act 1935 ("the PO Act"), s34B(1)(a)(i). Pursuant to the Sentencing Act 1997, s7(f), the proceedings were thereafter adjourned for a period of three years, without a conviction being recorded, upon the applicant giving an undertaking to the court that she would be of good behaviour and commit no offences against public order or of failing to comply with the directions of a police officer during the period of the adjournment. The applicant was ordered to pay costs totalling $150.

1. The applicant, by notice filed 27 September 2007, sought to review what she described as a conviction and sought an order that the learned magistrate's order be quashed.  The grounds of the notice to review were as follows:

"The grounds of the notice to review are as follows:

(a)       Her Honour erred in finding Ms Barratt guilty of the offence charged.

(b)Her Honour erroneously failed to observe the distinction between the decision, given on 13 August 2007 to reject the appellant's no case submission on the one hand, and the final judgment on the other hand, and, in doing so, erroneously held, or acted on the view, that the former decision determined, or provided or informed the grounds for determining, the latter judgment, and erroneously applied to the latter judgment the same, or a materially similar, test as had been applied to the former decision.

(c)Her Honour erred in finding, without any basis in the evidence, or, in the alternative, without sufficient evidence that Inspector Woolley had the belief required by s55 of the Act.

(d)If contrary to the foregoing, it is held that there was any or sufficient basis for the finding that Inspector Woolley had such a belief, then, further or in the alternative, her Honour erred in finding, without any basis in the evidence, or, in the alternative, without sufficient evidence, that Inspector Woolley's belief was formed or held by him on any, and if so any reasonable, ground within the meaning of s55 of the Act.

(e)Her Honour erred in finding, without any basis in the evidence, or, in the alternative, without sufficient evidence that Sergeant Burk had the belief required by s55 of the Act.

(f)If, contrary to the foregoing, it is held that there was any or sufficient basis for the finding that Sergeant Burk had such a belief, then, further or in the alternative, her Honour erred in finding, without any basis in the evidence, or, in the alternative, without sufficient evidence, that Sergeant Burk's belief was formed or held by her on any, and if so any reasonable, grounds within the meaning of s55 of the Act."

1. At the commencement of the hearing, the applicant sought and, with the consent of the respondent, was granted an extension of time to file her notice to review to enable it to proceed to hearing.

Course of proceedings

1. The applicant was charged on complaint number 6971/2007 with one count of trespass and one count of wilfully obstructing a police officer.  She pleaded not guilty to both charges and the matters were listed for hearing.  The hearing commenced on 30 July 2007.  At the close of the prosecution case, counsel for the applicant made a no case to answer submission in relation to both charges.  The matter was adjourned to 13 August for a decision in respect of that application.  On that date, the learned magistrate gave reasons.  As a consequence, the trespass charge was dismissed and the further hearing of the remaining charge was adjourned to another date.  At the resumed hearing, the applicant neither gave nor adduced evidence.  The learned magistrate heard submissions and reserved her decision.  She delivered that on 5 September 2007, at which time she found the remaining charge proved.  Following submissions as to sentence, she imposed the sentence referred to in par1 of these reasons.

Grounds of review generally

1. At the commencement of the hearing, counsel, in effect, abandoned ground (a) as an independent ground of review, accepting that grounds (b) to (f) were the bases upon which she sought the finding of guilt be quashed.

1. Ground (b) can be dealt with briefly.  The substance of this ground was that the learned magistrate applied the wrong test when making the ultimate finding of guilt in that she used the test applicable to the no case to answer submission.  I am satisfied that she did not.  At 49 of the appeal book, the reasons of the learned magistrate, which resulted in the finding of guilt, appear.  Between lines 25 and 40 the learned magistrate made certain findings and in doing so referred back to material in her ruling on the no case to answer submission without repeating that material.  It is perfectly plain from the passage to which I have referred that the learned magistrate was cognizant there was a different test to be applied in dealing with the ultimate finding of guilt.  She said at l25 "I am now (my emphasis) satisfied beyond a reasonable doubt…".  She went on to differentiate between the two tests again at l34 - 139.  The applicant has not made out this ground and it will fail.

Grounds (c ) to (f)

1. The PO Act, s34B(1)(a)(i) provides:

"34B    (1)       A person shall not –

(a)     assault, resist, or wilfully obstruct –

(i)   a police officer in the execution of his duty;"

The Act, s55(2B) and (2C) provides:

"55   (2B) Subject to subsection (2C), a police officer may arrest, without warrant, any person whom he believes on reasonable grounds to be on any land, building, structure, premises, aircraft, vehicle or vessel without the consent of the owner, occupier or person in charge of the land, building, structure, premises, aircraft, vehicle or vessel. 

(2C) The power of arrest conferred by subsection (2B) is not exercisable –

(a) unless the police officer has previously requested the person in relation to whom he seeks to exercise the power to leave the land, building, structure, premises, aircraft, vehicle or vessel concerned and that person has refused or failed to comply with the request; or

(b) if the police officer has reasonable grounds for believing that that person has some reasonable or lawful excuse for being on that land."

1. Counsel for the applicant submitted that a police officer, to be acting in the execution of his or her duty, had to be acting lawfully.  In the present case, it was submitted that, for police to be acting lawfully, firstly, either Inspector Woolley or Sergeant Burk had to hold a belief that the applicant was where she was without the consent of the owner, occupier or person in charge of that area and secondly, that belief, if held, had to be held on reasonable grounds.  Counsel for the applicant accepted that notwithstanding the separate attack on findings relating to Inspector Woolley and Sergeant Burk in the notice to review, it was sufficient for the finding of guilt if either of those officers held the requisite belief and hence, to succeed on this notice, the applicant needed to succeed on all of grounds (c) to (f). 

1. The substance of these grounds was that there was no evidence that either of those police officers had the requisite belief.  However, if it were found such a belief did exist, there was no evidence to support the finding that either police officer had reasonable grounds for that belief.

1. The learned magistrate expressed herself satisfied beyond reasonable doubt that both police officers were acting in the execution of their duty.  She noted that Inspector Woolley did not give evidence at all, and that Sergeant Burk, in the course of her evidence, did not give direct evidence that she held the requisite belief and of her grounds for holding that belief.  However, she found that the overwhelming inference to be drawn from Sergeant Burk's evidence was that she held the requisite belief. 

1. Sergeant Burk told the learned magistrate that on the relevant day she was tasked to attend protest action at the Florentine Valley in Maydena.  She was under the command of Inspector Woolley.  She observed a campsite on the roadway with between 5 and 10 persons there.  She heard Inspector Woolley read "a declaration" to those persons "to outline the fact that the State forest – it was a State forest and a particular area had been declared an exclusion zone."  While it was accepted that what Sergeant Burk heard Inspector Woolley say could not be evidence of the truth of the contents of the statement, it was evidence which could be considered by the learned magistrate in determining the belief of Sergeant Burk and her grounds for that belief.

1. Sergeant Burk went on to tell the Court about what Inspector Woolley told the protestors, saying that "he said after that that if they didn't leave that they would be arrested for trespass."  She and others then moved "in then to the actual area, further into the area" and came upon the applicant.  She described the applicant as being "in front of a large tree that was one of the trees that Forestry intended to cut down." Sergeant Burk told the applicant she was "required to leave the area and that if she did not she could be arrested for trespass ...".  Sergeant Burk said that, at some time thereafter, she "formally read the direction to her in respect to the designated exclusion zone and the requirement for her to leave."  When the applicant refused to leave she was told she was under arrest for trespass.

1. Some time later, having left the applicant's position, Sergeant Burk returned to her with Inspector Woolley.  At that stage Inspector Woolley directed the applicant to leave, and told her she was obstructing police and that she was under arrest for that.  Under cross-examination it emerged there was forestry machinery in the area and there were contractors ready to start work.

1. A Constable Remess also gave evidence that he was present on the day.  He said that there were people from Forestry Tasmania with Inspector Woolley.  He said "Inspector Woolley and members of … Forestry Tasmania issued a clear direction to protestors demonstrating in the exclusion zone … .  Basically the direction I heard was that Forestry Tasmania has withdrawn permission for protestors to be demonstrating in that area."  Sergeant Burk was present when these statements were made.

1. Counsel for the applicant handed up quite lengthy written submissions and spoke to them.  At par40, she said:

"In Lajos v Samuels (1980) 26 SASR 514 Legoe J in the Supreme Court of South Australia held at 520 that, when a question arose as to whether a direction made by a police officer was based upon relevant belief upon reasonable grounds, then it was for the officer concerned to satisfy the court that he had such a belief."

The page to which counsel referred formed part of the judgment of Jacobs J not Legoe J.  Further, with respect, the case is not, in my view, authority for the proposition put by counsel in the context in which it is sought to be used in this case.  It is a correct statement insofar as it is put in the context of the case cited.  There is no argument that the learned magistrate had to be satisfied beyond a reasonable doubt as to the belief (and grounds for it) held by Sergeant Burk and Inspector Woolley.  However, the case to which counsel referred is not authority for the proposition that the learned magistrate could only determine those matters by reference to the direct evidence of the officer concerned.  She was clearly entitled to look at the whole of the evidence before her.

1. Counsel also quoted in her submissions from the judgment of Legoe J in Goad v Sapauskas (1991) 13 MVR 461, a decision of the Supreme Court of South Australia. His Honour also, however, said:

"I do not understand that anything that was said by Jacobs J in the two later cases is contrary to the general construction placed on the section by Walters J in Hoobin v Samuels ((1971) 2 SASR 238). On the contrary, Jacobs J appears to have adopted at least the proposition that the person holding the belief will very often act on hearsay information in forming the belief (see 115 in Cotton v Ramm ((1976) 16 SASR 107)."

Reasons of the learned magistrate

1. In her reasons for finding the charge proved, the learned magistrate referred back to her findings in respect of the no case to answer submission.  She relied on the factual material in her earlier reasons, but did not seek to repeat it.  In those earlier reasons she said in relation to the charge of wilful obstruction:

" In my view, unlike count 1, proof of ownership or control of the land,  is not an element of this charge, it's only a particular. As long as the officers believed on reasonable grounds, that the defendant was on the land without the consent of the owner, whoever that might be, that will suffice as proof of this element of lawfulness. There is evidence upon which the Court can assess whether or not this belief may or may not have been reasonable. On the evidence, there is no question, at this stage, of course, that the officers entertained a belief of trespass. That is that the defendant was trespassing and that they genuinely believed it was reasonable. The genuineness of the belief is derived from the direction given by the inspector in their ear shot regarding the land being an exclusion zone and perhaps their belief that members of Forestry Tasmania, unnamed members, were present, sanctioning that direction. However, a genuine belief as to reasonableness or entitlement in this regard is not sufficient. I refer to the case of Kelly v Dann 1992, volume 8, Western Australian reports 225.

The test is objective and there needs to be facts presented to the court to determine objective reasonableness

Whilst the officers did not give evidence that they had received instructions from Forestry Tasmania, that forestry withdrew permissions for persons to be on that land, they were present when an inspector of police, their superior, gave instructions to a group of protestors, not as far into the forest as the defendant, to leave the exclusion zone. The inference, of course, that a Court may draw and is entitled to draw, in my view, was that an inspector of police would not issue such a direction without the consent of some person in control of the land. Thus, the inspector's direction is able to be taken into account in assessing the officer's reasonable belief. In addition, the officers observe forestry machinery and contractors apparently ready to start logging operations. They observed the defendant chained to the land and refused to move, an action which in all of the circumstances, suggests, certainly a belief on her part, that the land, that she was not entitled to be there and that the land was to be imminently logged.

In all of the circumstances, I find, on the prosecution case, that there is clear evidence upon which a Court could find that the officers held a reasonable belief in relation to the defendant trespassing and were acting lawfully and in the execution of their duty in requesting her to move from her position. I find there is a case to answer on count 2, for those reasons."

1. With respect, the learned magistrate has clearly identified the evidence from which conclusions as to the belief of the officers and the grounds for it could be drawn.  I agree with the learned magistrate that it is inconceivable that a senior police officer, in the situation in which Inspector Woolley was, is likely to make the statements he did in the circumstances in which he did without holding a belief that the area in which the applicant and others were found was under the control of Forestry Tasmania, was an area from which Forestry Tasmania was entitled to exclude people and an area from which Forestry Tasmania had indeed excluded people. Sergeant Burk was entitled to rely on the information given to her by Inspector Woolley and gained from statements made by him to third parties in her presence for the purpose of forming her belief. The learned magistrate was entitled to consider the evidence she heard about this for the purpose of determining whether there were reasonable grounds for the belief held by Sergeant Burk.

1. There is perhaps little doubt that the case for the prosecution before the learned magistrate could have been presented differently.  Inspector Woolley could have been called and both he and Sergeant Burk could have been questioned in a manner so as to elicit evidence which would have put their beliefs and the grounds for them beyond doubt.  However, the deficiencies in the way in which the case was presented were not, in my view, fatal to this count, although they clearly were in respect of count 1 on the complaint.

1. In all the circumstances, I am satisfied there was indeed evidence before the learned magistrate from which she could conclude that both Sergeant Burk and Inspector Woolley had the requisite belief and reasonable grounds for it.  Grounds (c) to (f) of the notice to review should therefore fail.  Even if I am wrong as to the position of Inspector Woolley, in the absence of any direct evidence from him, the position in respect of Sergeant Burk is far stronger and there can be no doubt there was sufficient to satisfy the learned magistrate beyond a reasonable doubt as to her belief and the reasonable grounds for it. 

1. Counsel for the applicant accepted that for the notice to review to succeed, leaving aside ground (b), the applicant had to succeed in respect of all of grounds (c) to (f).  This has not happened and the notice to review must therefore fail.  It will be dismissed.