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 2002DIVISION:
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 trialCriminal 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, followedCOUNSEL:
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 papersSOLICITORS:
Applicant appeared on his own behalf
Queensland Police Service Solicitor for the respondents
McMURDO P: I agree with Chesterman J that the application for leave to appeal should be refused with costs to be assessed.
DAVIES JA: I agree with the reasons for judgment of Chesterman J and with the order he proposes.
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 26th day…
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- AGLC
- Coleman v Kinbacher [2003] QCA 575
- Case
- [2003] QCA 575
- Decision Date
CaseChat Overview and Summary
The court considered the arguments put forward by the applicants that their actions were a form of political expression and thus protected under the Constitution. However, the court found that the applicants' conduct did not qualify as a direct political protest, as it was not aimed at communicating a particular political message or influencing political outcomes. The court further held that the applicants' actions were unlawful and did not warrant any constitutional protection. Therefore, the court dismissed the appeal and refused the application for a new trial, with costs to be assessed. This decision was based on the court's interpretation of the law and the facts of the case, and it was not influenced by any external factors.
Orders
Orders of the court
Application refused with costs to be assessed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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