GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
PATRICK JOHN COLEMAN APPELLANT
AND
BRENDAN JASON POWER & ORS RESPONDENTS
Coleman v Power
[2004] HCA 39
1 September 2004 B98/2002
ORDER
1. Appeal allowed.
2. So much of the order of the Court of Appeal of Queensland made on 30 November 2001 as deals with the order of Pack DCJ in the District Court of Queensland dated 26 February 2001 is varied by substituting the following:
The orders of Pack DCJ dated 26 February 2001 are set aside and in lieu thereof it is ordered that:
(a)the appeals to the District Court are allowed in respect of the convictions recorded in respect of the charges laid under s 7(1)(d) and s 7A(1)(c) of the Vagrants, Gaming and Other Offences Act 1931 (Q) and the convictions and sentences in respect of those charges are set aside;
(b)the appeals to the District Court are otherwise dismissed; and
(c)the respondents pay the appellant one half of the appellant's costs of and incidental to the appeals, those costs to be assessed.
3. Respondents to pay the appellant's costs in this Court.
On appeal from Supreme Court of Queensland
Representation:
W P Lowe with A D R Gibbons for the appellant (instructed by Patricia White & Associates)
G J Gibson QC with P J Davis for the first and second respondents (instructed by Queensland Police Service Solicitor)
P A Keane QC, Solicitor-General of the State of Queensland, with G R Cooper for the third respondent (instructed by Crown Solicitor for the State of Queensland)
D M J Bennett QC, Solicitor-General of the Commonwealth, with R G McHugh and B D O'Donnell intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales, with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia, with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Coleman v Power
Statutes – Acts of Parliament – Interpretation – Meaning of "threatening, abusive and insulting words" under Vagrants, Gaming and Other Offences Act1931 (Q) ("Vagrants Act"), s 7(1)(d) – Where appellant arrested for using insulting words to a person in a public place contrary to s 7(1)(d) – Whether "insulting words" must be reasonably likely to provoke physical retaliation.
Statutes – Acts of Parliament – Interpretation – Whether, if Vagrants Act s 7(1)(d) invalid, appellant's arrest was lawfully authorised by the Police Powers and Responsibilities Act1997 (Q) ("Police Powers Act"), s 35(1) – Whether convictions for obstructing and…
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.
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AGLC
Coleman v Power [2004] HCA 39
Case
[2004] HCA 39
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Patrick John Coleman against his convictions under the *Vagrants, Gaming and Other Offences Act 1931* (Qld) and the *Police Powers and Responsibilities Act 1997* (Qld). The dispute arose from Coleman's arrest for using insulting words in a public place, and subsequent charges of obstructing and assaulting police officers. The core of the matter involved the interpretation of "insulting words" under the *Vagrants Act* and the potential impact of the implied freedom of political communication guaranteed by the Australian Constitution.
The legal issues before the High Court included whether the definition of "insulting words" under section 7(1)(d) of the *Vagrants Act* required proof that such words were reasonably likely to provoke a physical retaliation. The Court also had to determine if, in the event that section 7(1)(d) was found to be invalid, Coleman's arrest was nevertheless lawful under section 35(1) of the *Police Powers Act*. Furthermore, the Court considered whether state legislation should be interpreted in a manner consistent with international human rights obligations, and crucially, whether section 7(1)(d) of the *Vagrants Act* and section 35(1) of the *Police Powers Act* impermissibly burdened the implied freedom of communication about government or political matters.
A majority of the High Court upheld the conviction under section 7(1)(d) of the *Vagrants Act*, finding that the term "insulting words" did not necessitate proof of an intention to provoke physical retaliation. However, the Court unanimously dismissed the appeal against the remaining convictions. The Court's reasoning involved an analysis of the statutory language and the established common law meaning of "insulting words." While acknowledging the importance of the implied freedom of political communication, the majority concluded that the provision, as applied in this instance, did not invalidate the conviction.
The High Court allowed the appeal in part. The orders of the District Court of Queensland were varied to set aside the convictions and sentences relating to charges laid under sections 7(1)(d) and 7A(1)(c) of the *Vagrants, Gaming and Other Offences Act 1931* (Qld). The appeals in respect of other charges were dismissed. The respondents were ordered to pay the appellant half of his costs of the District Court appeals and his full costs in the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. So much of the order of the Court of Appeal of Queensland made on 30 November 2001 as deals with the order of Pack DCJ in the District Court of Queensland dated 26 February 2001 is varied by substituting the following:
The orders of Pack DCJ dated 26 February 2001 are set aside and in lieu thereof it is ordered that:
(a) the appeals to the District Court are allowed in respect of the convictions recorded in respect of the charges laid under s 7(1)(d) and s 7A(1)(c) of the Vagrants, Gaming and Other Offences Act 1931 (Q) and the convictions and sentences in respect of those charges are set aside;
(b) the appeals to the District Court are otherwise dismissed; and
(c) the respondents pay the appellant one half of the appellant's costs of and incidental to the appeals, those costs to be assessed.
3. Respondents to pay the appellant's costs in this Court.
Background
Background to the litigation
Accordingly, the majority upheld the conviction under s 7(1)(d) of the Vagrants Act. The Court unanimously dismissed the appeal against the remaining convictions[37].[37]Power v Coleman [2002] 2 Qd R 620 at 634, 648.The material facts In March 2000, the appellant, Patrick John Coleman, was handing out pamphlets in a mall in Townsville. The mall was a public place. One of the headings in the pamphlet was in capital letters and in bold type stated: "GET TO KNOW YOUR LOCAL CORRUPT TYPE COPS". Behind the appellant was a placard upon which were written the words: "Get to know your local corrupt type coppers; please take one". The second and third lines in the body of the pamphlet declared that the appellant was "going to name corrupt cops". One of the police officers named in the pamphlet was the first respondent, Brendan Jason Power. The second page of the pamphlet contained the following statement:"Ah ha! Constable Brendan Power and his mates, this one was a beauty – sitting outside the mall police beat in protest at an unlawful arrest – with simple placards saying TOWNSVILLE COPS – A GOOD ARGUMENT FOR A BILL OF RIGHTS – AND DEAR MAYOR – BITE ME – AND TOWNSVILLE CITY COUNCIL THE ENEMY OF FREE SPEECH – the person was saying nothing just sitting there talking to an old lady then BAMMM arrested dragged inside and detained. Of course not happy with the kill, the cops – in eloquent prose having sung in unison in their statements that the person was running through the mall like a madman belting people over the head with a flag pole before the dirty hippie bastard assaulted and [sic] old lady and tried to trip her up with the flag while ... while ... he was having a conversation with her before the cops scared her off ... boys boys boys, I got witnesses so KISS MY ARSE YOU SLIMY LYING BASTARDS." The contents of this pamphlet formed the basis of Charge (6) which, as I have said, was laid under s 7A(1)(c) of the Vagrants Act and which the Court of Appeal unanimously held could not validly apply to the handing out of the pamphlet. The validity of Charge (6) is no longer an issue between the parties. However, the contents and handing out of the pamphlet are relevant matters in assessing whether the appellant was engaged in communicating political or governmental matters when he uttered the words that form the basis of Charge (1). During the day, the appellant gave one of the pamphlets to Constable Carnes who told Constable Power about the contents of the pamphlet. As a result, Constable Power in the company of another constable approached the appellant and asked for a pamphlet. The appellant refused to give him one, saying, "No, you know what's in it". What happened thereafter was the subject of dispute between the police officers and the appellant as to whether he pushed Constable Power before or after his arrest. In the District Court, Pack DCJ said the magistrate had "resolved the conflict in evidence in [Constable Power's] favour". I think that this conclusion is correct. Although the magistrate did not expressly say that she preferred the evidence of Constable Power to that of the appellant, her judgment shows that she thought the appellant's admissions in evidence and the evidence contained in a videotape proved the charges against him. Because the videotape evidence supported Constable Power's version of events, I think that she must have preferred his evidence to the appellant's evidence.