Coleman v Kinbacher

[2003] QCA 575

SUPREME COURT OF QUEENSLAND

CITATION:

Coleman v Kinbacher & Anor (Qld Police) [2003] QCA 575

PARTIES:

PATRICK JOHN COLEMAN
(appellant/applicant)
v
CONSTABLE ANDREW KINBACHER (QLD POLICE)
(first respondent)

CONSTABLE ANTHONY MARINOV (QLD POLICE)
(second respondent)

FILE NO:

Appeal No 252 of 2003
DC No 373 of 2002
MAG No 17761 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

24 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P, Davies JA and Chesterman J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused with costs to be assessed

CATCHWORDS:

PROCEDURE - INFERIOR COURTS - QUEENSLAND - DISTRICT COURT - CRIMINAL JURISDICTION - APPEAL AND NEW TRIAL - APPEAL TO SUPREME COURT - where applicant charged with disorderly conduct - flag burning as a political protest - where violent resistance to arrest - s 7 of the Vagrants, Gaming and Other Offences Act 1931 (Qld) - whether conduct was protected by implied constitutional freedom to protest against a political decision - where arrest without warrant - s 198 Police Powers and Responsibilities Act 2000 (Qld)

CRIMINAL TRIAL - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION  - GROUNDS FOR INTERFERENCE - APPEAL BY CONVICTED PERSONS -  whether applicant’s conduct was a direct political protest which was constitutionally protected –
whether applicant engaged in disorderly conduct in burning a sheet - whether applicant entitled to resist arrest - function of particulars in a criminal trial

Criminal Code 1899 (Qld), s 23
Police Powers and Responsibilities Act 2000 (Qld), s 198
Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7

Dare v Pulham (1982) 148 CLR 658, followed
Levy v The State of Victoria and Ors (1996-1997)189 CLR 579, followed
Melser v Police [1967] NZLR 379, considered
O’Connor v Police [1972] NZLR 437, considered
R v Saffron (1989) 17 NSWLR 395, considered
The Queen  v Trifyllis (1998) QCA 416; CA No 358 of 1998, 11 December 1998 followed
Watson v Trenerry (1998) 100 A Crim R 408, followed

COUNSEL:

No appearance by the applicant, the applicant’s submissions were heard on the papers
No appearance for the respondents, the respondents submissions were heard on the papers

SOLICITORS:

Applicant appeared on his own behalf
Queensland Police Service Solicitor for the respondents

1. McMURDO P: I agree with Chesterman J that the application for leave to appeal should be refused with costs to be assessed.

1. DAVIES JA: I agree with the reasons for judgment of Chesterman J and with the order he proposes.

1. CHESTERMAN J: On 1 October 2002 the applicant was convicted of four offences which arose out of an incident on the previous Australia Day in Townsville.  The hearing of the charges occurred over five days in July and August 2002.  The charges were:

‘1.That on the 26^th day…