Butterworth v Geddes

[2005] QDC 333

DISTRICT COURT OF QUEENSLAND

CITATION:

Butterworth v Geddes [2005] QDC 333

PARTIES:

Kaylor Maree Butterworth

(Appellant)

v

Sergeant A D Geddes

(Respondent)

FILE NO/S:

3 of 2005

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrate’s Court Mt Isa

DELIVERED ON:

13^th October 2005

DELIVERED AT:

Mt Isa

HEARING DATE:

11^th October 2005

JUDGE:

FORDE DCJ

ORDER:

1. The appeal is dismissed.
2. No order as to costs.

CATCHWORDS:

PUBLIC NUISANCE – OBSCENE LANGUAGE – OFFENSIVE WAY - DISORDERLY WAY– INTERFERING WITH OR LIKELY TO INTERFERE WITH  PEACEFUL PASSAGE OR ENJOYMENT OF A PUBLIC PLACE – What constitutes public nuisance – where behaviour occurred on private property

Acts Interpretation Act 1954 s14B

Vagrants Gaming and Other Offences Act 1931 ss7, 7AA

Beutel v Jerome, ex.parte Beutal [1957] QWN 45.

Coleman v Power (2004) HCA 39.

Darney v Fisher  DC 8 June 2005

Del Vecchio v Crouchy [2002] QCA 9.

Fox v Sawdy ex.p.Fox [1980] Qd R 378.

MAN v MAM [2003] QDC 398.

COUNSEL:

Ms R Kirk for the Appellant

Mr J Godbolt for the Respondent

SOLICITORS:

Legal Aid Queensland

Director of Public Prosecutions

Introduction

1. At 12.50 a.m. on 8 October 2004, police officers were called to a disturbance at Walton Street, Mt. Isa.  The appellant, Kaylor Maree Butterworth, had been drinking alcohol.  She was in her own yard, and was using language such as “fucking leave them alone” and “fucking pigs”.  When asked to settle down, a further tirade occurred and she stated “You cunts – you cunts can’t come into my yard”, “you can get fucked”.

1. At the material time, there were children and other persons in the street.  The appellant was charged and subsequently convicted after a trial of the offence of committing a public nuisance.[1] She was fined $75.00 in default one day imprisonment and given one month to pay.

   [1] S 7AA(1) Vagrants Gaming and Other Offences Act 1931 (the “Act”).

1. Leave was sought to add grounds to the appeal against her conviction which include that the learned magistrate erred in finding that she used obscene language, that she behaved in an offensive or disorderly manner.  The finding that police officers were members of the public was pursued on appeal but there was a specific finding that other members of the public were in the vicinity at the material time.  It became unnecessary to determine the finding in relation to the police officers.[2]  The other ground was that the learned magistrate erred in finding that the conduct of the appellant was likely to interfere with the peaceful passage through or enjoyment of the public place viz. Walton Street. 

   [2] para. 23 written submissions of appellant;  Darney v Fisher per O’Sullivan DCJ 8 June 2005 where Her

   Honour held that police officers were not specifically included as members of the public and therefore not

   intended to be covered by s 7AA of the Act

1. The application to amend the Notice of Appeal was not opposed and leave is granted to amend in terms of paragraph 2…