Coleman v Kinbacher

[2003] QDC 231

DISTRICT COURT OF QUEENSLAND

CITATION:

Coleman v Kinbacher and Anor [2003] QDC 231

PARTIES:

PATRICK JOHN COLEMAN
Appellant
v
CONSTABLE ANDREW KINBACHER (QLD POLICE)
And
CONSTABLE ANTHONY MARINOV (QLD POLICE)

FILE NO:

Appeal 373/02

DIVISION:

Appellate Jurisdiction

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Townsville

DELIVERED ON:

30th July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2003

JUDGE:

Boulton DCJ

ORDER:

The appeal is therefore dismissed with costs.  Liberty to both parties to apply within seven days.

CATCHWORDS:

Vagrants Gaming and Other Offences Act 1931 – disorderly conduct – sufficiency of particulars – implied protection of political communications to the public.

COUNSEL:

Appellant in person;

Mr A Dillon for Respondents

SOLICITORS:

Director of Public Prosecutions for Respondents

REASONS FOR JUDGMENT

1. This is an appeal against conviction.  On 1 October 2002 the appellant was convicted in the Magistrates Court at Townsville by Mr Smith SM of:

(1)        behaving in a disorderly manner pursuant to s 7(1)(e) of the Vagrants Gaming and Other Offences Act 1931;

(2) obstructing a police officer in the course of duty pursuant to s 444(1) of the Police Powers and Responsibilities Act 2000;

(3) one count of serious assault on a police officer acting in the course of his duties pursuant to s 340(a) of the Criminal Code Act 1899; and

(4) wilful damage of a police vehicle pursuant to s 469 of the Criminal Code Act 1899.

1. The matter was heard over a period of six days - 10, 11 and 12 July 2002, 20 and 21 August 2002 and 29 August 2002.  On 1 October 2002 the stipendiary magistrate convicted the appellant on all counts handing down a 15 page set of reasons for his decision.

1. The events, the subject of the charges, occurred within a very short space of time and in many respects were not in dispute.  On Australia Day 2002 there was a large public gathering to celebrate the occasion at a park in Townsville.  The number of people in attendance was estimated to be well in excess of 1,000 people and comprised a large number of family groups including young children.  A stage had been erected and various civic dignitaries were in attendance.  There would seem to have been some security officers present at the gathering and two young police officers, Kinbacher and Marinov were also in attendance.

1. The appellant was a vocal critic of the current Australian government and was specifically opposed to the mandatory detention of asylum seekers particularly women and children.  He had written a letter to the local press which was published that same day criticising the policy and ending with the words “burn the flag”.  He had come along to the gathering with the intention of making a political protest and had purchased an Australian flag and some two stroke petrol along with a lighter in order to achieve that end.  He also had a groundsheet which he spread on the ground where the flag was to be dropped.  He poured the contents of the bottle containing the petrol over the flag then produced the lighter and lit the bottom corner of the flag which was held aloft with a stick.  The flame went out.  At this stage the two police officers intervened, Kinbacher telling him not to light the flag again.  He proceeded to do so, however, and the flag which was made of a synthetic material dropped some pieces of burning fabric on to the ground sheet which also caught fire.  The fire was quickly extinguished by the police officers and the appellant who was then arrested for disorderly conduct, the first of the four charges.  The second and third charges arose out of the struggle that followed where security officers came to the aid of the police in subduing the appellant.  When placed in the police vehicle he kicked out the glass window of the vehicle which accounts for the fourth of the charges.

1. The appellant’s contention both before the magistrate and on appeal was that he was engaged in a legitimate political protest which is an implied right of a citizen under the Australian Constitution.  He submits that s 7(1)(e) of the Vagrants Gaming and Other Offences Act in so far as it conflicts with the Constitution is invalid with the result that his actions were not caught by the provisions of the Act. As a result, the arrest that followed was unlawful. His resistance to the arrest resulting in the remaining charges was legitimate in the context of an unlawful arrest.

1. At the commencement of the trial the Crown provided particulars of the matters, the subject of the various charges.  The material portion of the particulars relating to the first charge, including a small amendment which was made by leave on 12 July, were as follows:

“at about 4.50 pm on 26 January 2002 at Riverside Park it will be alleged that whilst setting alight a flag the ensuing fire spread out of control to a ground sheet and surrounding vegetation causing fear, danger of injury and disruption to members of the public.”

1. Somewhat surprisingly this very brief description of the events to which I have referred above became the subject of contention both before the magistrate and on appeal.  The reference to burning vegetation seemed to have derived from the evidence of the first Crown witness, a Janelle Maree Gibson.  She was an off duty police officer who was attending the function with her two daughters aged 10 and 3.  She was sitting on a blanket about 10 metres away from where the appellant was setting fire to the flag but at no time saw the groundsheet.  She described some flames on the grass after the flag caught alight.  Other evidence suggested that the flames related to the groundsheet.

1. Of more significance, however, was the evidence of the appellant himself where he claimed to the magistrate that he could not have foreseen the fire to the groundsheet.  The magistrate refers at p 14 of his reasons to the decision of the Court of Appeal in R v Taiters ex parteAttorney-General (1997) 1 Qd R 333 at 338 and the comments of Gibbs J in Kaporonovski v R (1973) 133 CLR 209 at 231 and found that in respect of the flames to the groundsheet the prosecution had not negatived a defence of accident.

1. The particulars provided in the present instance, though brief, describe a single episode.  As mentioned above the events complained of would seem to have occurred within the space of seconds rather than minutes.  It is transparently obvious that the events commenced with the igniting of the flag to which the contents of a flask of petrol had been previously applied.  It may well be that the secondary fire to the groundsheet appeared to observers including the police officers as potentially more serious but the appellant could not have been in any doubt that part of the case against him involved the igniting of the flag itself.

1. The provision of particulars in criminal proceedings was discussed by the Queensland Court of Appeal in The Queen v John Theo Trifyllis CA No 358 of 1998 where judgment was delivered on 11 December 1998.  The leading judgment was delivered by Chesterman J with whom de Jersey CJ and McPherson JA agreed.  His Honour referred to a number of decided cases R v Juraszko (1967) Qd R 128 and R v Saffron (1989) 17 NSWLR 395 before referring to the following comments of the High Court in Dare v Pulham (1982) 148 CLR 638 at 664:

“Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it …; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial … .  Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings … .  But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence.  Particulars may be amended after the evidence in a trial has closed … , though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence.”

1. The Queen v Trifyllis involved a charge of assault occasioning bodily harm involving a series of blows.  As found by Chesterman J it was quite properly charged as the one episode.  At p 7 of the unreported judgment.  his Honour identifies the flaw in the appellant’s argument:

“The appellant’s argument seeks to compartmentalise the altercation between the appellant and the complainant into separate assaults and then to contend that the assault which is the subject of the Crown’s particulars cannot be, on a fair reading of the evidence as a whole, the assault from which the complainant lost his teeth.  From this it is submitted that the Crown has not proved beyond reasonable doubt the case it brought against the accused and, as a corollary, that the defence contested only the assault particularised.  Then it is said to be unfair to the appellant to convict him of another assault which was not the subject of particulars and was not therefore defended.”

1. This is precisely what the appellant seeks to do in the present instance.   In his own evidence he made reference to the secondary fire being unexpected and unforeseeable making particular reference to the wetness of the groundsheet which would seem to have raised a reasonable doubt in the mind of the magistrate.  In effect he was seeking to compartmentalise the episode to argue that the verdict was not able to be supported by the initial actions concerning which there was common ground.  The appellant’s own evidence was that he had come along intending to burn the flag and had provided himself in advance with the wherewithal to do so.

1. The term “disorderly conduct” is one that requires a consideration of those words in the particular circumstances of the case.   In the present instance there does not appear to have been an imminent breach of the peace arising out of the Appellant’s burning of the Australian flag per se, despite the fact that some onlookers may have been resentful of his actions in the context of an Australia Day function.

1. It falls short though of the situation in Wainwright and Butler v Police (1968) NZLR 101. That was a case where an Anzac Day wreath laying ceremony was disrupted with serious offence to the feelings of those who had lost loved ones in various conflicts. There was an actual hostile response. Wild CJ held that disorderly conduct was made out.

1. Watson v Trenerry 100 A Crim R 408 was a flag burning case. There was, however, no evidence of interference with passers-by and no danger to a parked vehicle nearby. No serious inconvenience or threat to comfort or tendency to disturb the peace was demonstrated and the supposed danger was trifling and insubstantial.

1. There was a substantial body of evidence from prosecution witnesses concerning the presence of a very large assembly of people including families and young children.  Some of these latter were in quite close proximity to the appellant and parents spoke of their concern for the safety of the children when they saw what the appellant was doing.  The off duty police officer Ms Gibson was sitting on the ground at what she estimated was a distance of 10 metres from the appellant but described the presence of a marquee quite close to the appellant.  She was asked:

“All right.  And in the area where this gentleman was laying the flag on the ground -----? -- Mmm.

-----about how many people, are you able to estimate?--  Where the male person laid the flag on the ground was under a tree and as you look at the tree, to the left there was a – like a – a marquee and that was set up for the children’s face painting marquee.

How far away was that from the – from that person?--  Look, it would have – would have been four to five metres at the most away.

Mmm?—And there were people all around there.  So I would have to think there would have been – and I mean it would be a guesstimate.  There probably would have been 50 to a hundred people in that immediate area. …..

What-----?—Okay.  It was – there were males, females and children.  It was a family event.

Mmm?—So there was a lot of children there and the marquee next to – closest to where the male person was, was set up where the children could have their face painted and there were actually people standing in line holding their children waiting to get their faces painted.

How far were they away from the defendant?--  They would have been a couple of metres away.

All right.  And could you estimate the – the amount of people in that line?--  Wow.  Ten to 15 people with children.”

1. Another witness Melissa Maria Bettenay was present along with her husband and children aged three and one.  She had taken the two children to the face painting tent which was 8-10 metres away from where her husband was sitting.  She was asked:

“All right.  Now what happened there? --  At the time we were actually waiting in line-----

Mmm?-- -----to-----

So you were waiting in line, yes?--  We noticed that a – a gentleman came down through the crowd-----

Mmm? -- -----and began to yell very loudly.

All right.  You say he came down, to where?—Between myself and my husband it would have been about middle ground.  So he-----

Yes?-- -----he would have been probably about five – it’s terrible when you can’t judge distance that well.

Yes.  You’ve said five?--  Yeah, about five metres away.

All right.  So he would have been about five metres away from you and five metres away from your husband?--  Yep.”

1. Another witness who was present with children was Troy William Turner.  He estimated that he was 30-50 feet away from the appellant.  He said that people were moving away from the scene.  He did not see the flag lit but saw it after the event when it appeared to be partially burnt. 

1. Constable Kinbacher was asked about his concerns:

“Thank you.  Now, when were you first aware that Mr Coleman was lighting the flag?--  As I was approaching Mr Coleman.

All right.  How did that make you feel?--  Become – become concerned for the welfare of the people in the immediate area of Mr Coleman.

Now, did you hear Mr Coleman say anything as he was lighting the flag on the first occasion?--  Cannot recall.

All right.  You say you became concerned for the welfare of people in the immediate area of Mr Coleman.  What - what was the cause of your concern?--  The cause of my concern was that people were moving freely around Mr Coleman, coming into close proximity of Mr Coleman.  These – part of that, when I say people, being small children.  An accident may happen.

Mmm?--  That being, someone may be burnt.”

1. The appellant was asked in cross examination about the presence of other people particularly children and their presence at the face painting tent and said that he did not notice.

1. I have canvassed some portions of the prosecution evidence concerning the presence of members of the public and children because it was against the backdrop of such evidence that the magistrate at p 15 of his reasons approached the question of whether the appellant’s actions in lighting the flag amounted to disorderly conduct.  It was plainly open to the magistrate to do so on the evidence.  Far from being a finding which was unsupported by the evidence it seems to me to have been quite compelling.  I was provided with an extensive summary of the evidence at first instance which is marked ‘Attachment “A”’.  This contains reference to a large volume of other evidence to similar effect.

1. I turn now to the appellant’s argument based upon the implied protection in the Australian Constitution to communications made to the public on government or political matters.  This implication was the subject of a declaration by a full bench of the High Court of Australia in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The principle is succinctly described at p 571 in the following terms:

“Accordingly, this court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia.  The duty to disseminate such information is simply the correlative of the interest in receiving it.  The common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters.  The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege.  Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter.”

1. However the constitutional implication is not absolute and legislation which has a legitimate purpose for non political reasons is not necessarily struck down.  The position concerning non verbal conduct in particular is described by Brennan CJ in Levy v Victoria (1996-1997) 189 CLR 579 at 595:

“However, while the speaking of words is not inherently dangerous or productive of as tangible effect that might warrant prohibition or control in the public interest, non-verbal conduct may, according to its nature and effect, demand legislative or executive prohibition or control even though it conveys a political message.  Bonfires may have to be banned to prevent the outbreak of bushfires, and the lighting of a bonfire does not escape such a ban by the hoisting of a political effigy as its centrepiece.  A law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose.  Such a law prohibiting or controlling the non-verbal conduct, if it be reasonable in extent, does not offend the constitutional implication.”

1. The concept of disorderly behaviour is in every case a matter of degree depending upon the relevant time, place and circumstances.  The police had made no move to interfere with the appellant while he made anti-government political statements.  While these statements may have been unpalatable to some of the patrons of the event there is no suggestion that feelings had become so inflamed as to render likely a breach of the peace.  Actually, there seems to have been some merriment at the failure of the appellant to light the flag at the first attempt.  The objectionable feature of the conduct had very little to do with its political significance.  It related to the lighting of a large piece of synthetic material to which petrol had been added in close proximity to larger numbers of people including young children.  The circumstances were such as to arouse the apprehension of parents for the safety of their children.  After the first attempt to light the flag failed Constable Kinbacher intervened requesting him not to light the flag.  There is some ambiguity, particularly in the evidence of Constable Marinov, as to whether Constable Kinbacher said this once or twice but it does not really seem to matter.  The appellant proceeded to light the flag and the secondary fires to the area of the groundsheet followed.  The motive of the appellant was irrelevant.

1. The magistrate described the conduct of the appellant as “provocative, disruptive and disturbing, and, in the manner he went about it, could be described as a substantial breach of decorum”.  However he went on to describe the crucial and significant facts as being the actual decision by the defendant to burn a flag of that size, with the aid of an accelerant at that particular time and place, that it did ignite and the adverse effect his behaviour appeared to have on some of the public present at the time.  The principal such effect emerging from the evidence was the concern felt by parents for the safety of their children.

1. The resolution of the issue of disorderly conduct against the appellant presents an insurmountable burden to him in attacking the convictions on counts 2, 3 and 4.  Sections 7, 8 and 9 of the Police Powers and Responsibilities Act 200 provide inter alia that it is lawful for a police office, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for one or more of the following reasons –

“(a)     To prevent the continuation or repetition of an offence or the commission of another offence ….

…….

(g)       To preserve the safety or welfare of any person, including the person arrested.”

1. The question of the lawfulness of the arrest is dealt with by the magistrate at p 9 and p 10 of his reasons.  The test to be applied is not one of actual conviction of an offence which can only be resolved at a later point of time.  In the circumstances it was legitimate for Kinbacher to have a reasonable suspicion that there was danger to the safety and wellbeing of members of the public and that it was reasonably necessary to prevent the repetition or continuation of the offence or to preserve the safety of persons, including one might mention, the police officers themselves.

1. The magistrate’s treatment of the issue of lawfulness of arrest is not shown to be in error.  The evidence also amply supports his findings on the remaining charges, which appear at p 9 of his reasons.

1. The appeal is therefore dismissed with costs.  As the judgment is being handed down in Brisbane I give both parties liberty to apply in respect of the orders made within seven days.