Carmichael v Upton; Upton v Carmichael - [2011] QDC 262

DISTRICT COURT OF QUEENSLAND

CITATION:

Carmichael v Upton; Upton v Carmichael [2011] QDC 262

PARTIES:

CARMICHAEL

Appellant

v

UPTON

Respondent

AND

TREVOR DOUGLAS UPTON

Appellant

v

QLD POLICE SERVICE

Respondent

FILE NO/S:

D2/2011, D1/2011

DIVISION:

District Court

PROCEEDING:

Appeals

ORIGINATING COURT:

Magistrate’s Court, Brisbane

DELIVERED ON:

9^th November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

7^th November 2011

JUDGE:

Clare SC DCJ

ORDER:

No. D2/2011:

1.   The appeal against the dismissal orders is allowed.

The Magistrate’s order of 24 November 2011 dismissing the charges is set aside. 2.

Convictions are entered for the offences of assaulting a police officer in the performance of his duties and obstructing a police officer in the performance of his duties, contrary to s 790(1) of the Police Powers and Responsibility Act 2000 (Qld). 3.

No order as to costs4.

The matter is remitted back to the magistrate for sentence.5.

No. D1/2011:

1.     The defendant’s appeal against the decision not to award him costs is dismissed.

The defendant is to pay the costs of the Queensland Police Service of and incidental to the appeal in accordance with the scale.2.

CATCHWORDS:

APPEAL – summary trial – assault and obstruct police in performance of duty – dismissal orders - police powers; lawful arrest; unlawful questioning; whether continuing detention rendered unlawful by unlawful questioning.

APPEAL – summary trial – failure of Magistrate to award costs upon dismissing complaint.

Powers and Responsibility Act 2000 (Qld), s 365, s 418, s 431, s 790(1).

Coleman v Power (2004) 220 CLR 1

Michaels v R (1995) 184 CLR 117

Re K (1993) 46 FCR 336

R v Hawton [2009] QCA 248

R v LR [2006] 1 Qd R 435

COUNSEL:

Ms P. Clohessy for the appellant.

Mr R. Douglas SC appearing for the respondent.

Mr R. Douglas SC appearing for the appellant.

Ms K. Boileau for the respondent.

SOLICITORS:

Queensland Director of Public Prosecutions for the appellant.

V.A.J. Byrne & Co. appearing for the respondent.

V.A.J. Byrne & Co. appearing for the appellant.

Queensland Police Service for the respondent.

On 24 November 2011 charges of assaulting police & obstructing police were dismissed after a trial in the Magistrate’s Court. Defence counsel then made an application for costs. The application was adjourned to a later date. Subsequently, the magistrate dismissed the costs application for want of jurisdiction.

The complainant, Constable Drew Carmichael has appealed against the order of dismissal. The defendant, Mr Upton, has appealed against the order refusing the defence costs. The appeal against the dismissal order must be determined first.

The conviction appeal D2/2011

By virtue of s 223 of the Justices Act1886 (Qld) this is an appeal by way of a rehearing on the record. The sole ground for appeal against the dismissal is that the magistrate erred in fact and law when determining that the elements of the charges were not made out.

The circumstances of the charges

The primary facts were not disputed on appeal. Two police officers had been sent to the small…

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 Carmichael v Upton; Upton v Carmichael

Details

AGLC: Carmichael v Upton; Upton v Carmichael [2011] QDC 262
Case: [2011] QDC 262
Decision Date: 9 November 2011

CaseChat Overview and Summary

The appeal before the court involved two cases, Carmichael v Upton and Upton v Carmichael. The central issue was whether the police had the lawful authority to arrest and detain the appellant, and if their questioning rendered the detention unlawful. The second appeal challenged the Magistrate's decision not to award costs to the appellant. The court had to determine whether the police had the lawful authority to arrest and detain the appellant, and whether the questioning by the police rendered the detention unlawful. Additionally, the court needed to decide if the Magistrate erred in not awarding costs to the appellant.

The court found that the police had the lawful authority to arrest and detain the appellant, as they had reasonable suspicion that he was involved in drug-related activity. However, the court also determined that the questioning by the police was unlawful, which rendered the detention unlawful. The court held that the Magistrate erred in dismissing the charges against the appellant. The court held that the Magistrate also erred in not awarding costs to the appellant. The court found that the Magistrate's decision not to award costs was unreasonable.

The court allowed the appeal against the dismissal orders and set aside the Magistrate's order of 24 November 2011. Convictions were entered for the offences of assaulting a police officer in the performance of his duties and obstructing a police officer in the performance of his duties. The matter was remitted back to the magistrate for sentence. The court dismissed the defendant's appeal against the decision not to award him costs, and the defendant was ordered to pay the costs of the Queensland Police Service of and incidental to the appeal in accordance with the scale.

Orders

Orders of the court

No. D2/2011:

1. The appeal against the dismissal orders is allowed.

The Magistrate’s order of 24 November 2011 dismissing the charges is set aside. 2.

Convictions are entered for the offences of assaulting a police officer in the performance of his duties and obstructing a police officer in the performance of his duties, contrary to s 790(1) of the Police Powers and Responsibility Act 2000 (Qld). 3.

No order as to costs4.

The matter is remitted back to the magistrate for sentence.5.

No. D1/2011:

1. The defendant’s appeal against the decision not to award him costs is dismissed.

The defendant is to pay the costs of the Queensland Police Service of and incidental to the appeal in accordance with the scale.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Carmichael v Upton; Upton v Carmichael [2011] QDC 262
PARTIES:	CARMICHAEL Appellant v UPTON Respondent AND TREVOR DOUGLAS UPTON Appellant v QLD POLICE SERVICE Respondent
FILE NO/S:	D2/2011, D1/2011
DIVISION:	District Court
PROCEEDING:	Appeals
ORIGINATING COURT:	Magistrate’s Court, Brisbane
DELIVERED ON:	9^th November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	7^th November 2011
JUDGE:	Clare SC DCJ
ORDER:	No. D2/2011: 1. The appeal against the dismissal orders is allowed. The Magistrate’s order of 24 November 2011 dismissing the charges is set aside. 2. Convictions are entered for the offences of assaulting a police officer in the performance of his duties and obstructing a police officer in the performance of his duties, contrary to s 790(1) of the Police Powers and Responsibility Act 2000 (Qld). 3. No order as to costs4. The matter is remitted back to the magistrate for sentence.5. No. D1/2011: 1. The defendant’s appeal against the decision not to award him costs is dismissed. The defendant is to pay the costs of the Queensland Police Service of and incidental to the appeal in accordance with the scale.2.
CATCHWORDS:	APPEAL – summary trial – assault and obstruct police in performance of duty – dismissal orders - police powers; lawful arrest; unlawful questioning; whether continuing detention rendered unlawful by unlawful questioning. APPEAL – summary trial – failure of Magistrate to award costs upon dismissing complaint. Powers and Responsibility Act 2000 (Qld), s 365, s 418, s 431, s 790(1). Coleman v Power (2004) 220 CLR 1 Michaels v R (1995) 184 CLR 117 Re K (1993) 46 FCR 336 R v Hawton [2009] QCA 248 R v LR [2006] 1 Qd R 435
COUNSEL:	Ms P. Clohessy for the appellant. Mr R. Douglas SC appearing for the respondent. Mr R. Douglas SC appearing for the appellant. Ms K. Boileau for the respondent.
SOLICITORS:	Queensland Director of Public Prosecutions for the appellant. V.A.J. Byrne & Co. appearing for the respondent. V.A.J. Byrne & Co. appearing for the appellant. Queensland Police Service for the respondent.