Coleman v Power & Ors

[2002] HCATrans 481

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B6 of 2002

B e t w e e n -

PATRICK JOHN COLEMAN

Applicant

and

BRENDAN JASON POWER

First Respondent

ADAM RICHARD CARNES

Second Respondent

THE ATTORNEY‑GENERAL OF THE STATE OF QUEENSLAND

Third Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 9.31 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC, Solicitor‑General for the State of Queensland:   If the Court pleases, I appear with MR G.R. COOPER, of counsel, for the third respondent.  (instructed by the Crown Solicitor for the State of Queensland)

MR G.J. GIBSON, QC:   If it please the Court, I appear for the first and second respondents.  (instructed by Queensland Police Service Solicitor)

GAUDRON J:   Yes, thank you.  There will be no oral argument for the applicant, I understand.

MR KEANE:   That is as we understand it, your Honour.

GAUDRON J:   Yes, thank you.  You oppose the application, I take it?

MR KEANE:   Yes, your Honour.

GAUDRON J:   Yes.  Very well.

MR KEANE:   Your Honours, the crucial passage in the reasons of the Court of Appeal so far as the validity of section 7(1)(d) of the Vagrants Gaming and Other Offences Act is concerned is set out at page 108 of the application book.  In paragraph 14 of our outline there we have set out what we would submit with respect are the crucial passages in the judgments of Justice Thomas and Justice Davies respectfully.  Your Honours will see from those passages that their Honours’ conclusion was that the relevant section, section 7(1)(d), was adapted to the prevention of breaches of the peace and as such was reasonably appropriate and adapted to serve the end of free debate, free of breaches of the peace and then compatible with the maintenance of the constitutionally prescribed system which, one might say, is concerned with free debate leading to free voting, not about ‑ ‑ ‑

GAUDRON J:   But is not the difficulty with this that unless read down, one is right in the middle of Nationwide News v Wills territory?

MR KEANE:   We would submit not, with respect, because this is not about stopping people saying things in a one‑way sense.  This is about preserving the possibility of everyone saying something in public places.  The point being made by both Justice Thomas and Justice Davies is that a provision such as this is apt to prevent the use of threats, insults and abuse in public places apt to lead to acrimony, breaches of the peace and then assessor of free public debate, unlike Nationwide News, which was concerned with the prevention unilaterally of speech.

GAUDRON J:   You accept it was a political statement that was here involved.

MR KEANE:   Your Honour, we accept that the section is apt to be engaged when a political statement is made, and we accept that the nature of the statement was such as to be possibly characterised as that.  But what we say, with respect, is that this provision does involve striking an appropriate balance of the rights of everybody in public places to say their piece and not to be insulted, abused or threatened in doing so and the question is not whether another and different provision might be better adapted to secure that end.  Rather, the issue is whether it was open to the legislature to take the view that it strikes an appropriate balance in the way that it has.  We would submit, with the greatest respect, to say that political speech is often indecorous and vigorous is not  to explain why it is not open to the legislature to seek to impose standards directed to preventing public acrimony and why such a standard ‑ ‑ ‑

GAUDRON J:   It depends whether you can say it is directed to that end.

MR KEANE:   Your Honour, with respect, the question is whether it is apt to serve that end and, in our submission, it is.  In its terms, of course, it is not directed to political speech.  In its operation it may affect it.  In its terms it is directed to prevention of breaches of the peace.  In its operation it is apt to have that effect on occasions when political speech is involved.  It is simply saying that on those occasions that if the speech involves insults, abuse and threats then there is an infringement of the provision because of the possibility of acrimony leading to breaches of the peace.

Your Honours, that is what we would say, in substance, in relation to the point that is sought to be agitated as to the validity of the section.  As to the suitability of the case as a vehicle for special leave, we would mention simply that a conclusion in favour of invalidity would not, as it appears to us, have any realistic prospect of leading to a different result in the case.

GUMMOW J:   Why is that?

MR KEANE:   Your Honour, because of the views taken by the President, or the views expressed by the President and agreed in by the other members of the court, at paragraphs [31] and [32].

GAUDRON J:   But that has to be wrong, has it not?  If the section is invalid then Mr Coleman was entitled to exercise a right of self‑defence to resist arrest.  And what are the police powers of arrest?  When I looked at them it was not clear to me that there were any powers of arrest in this case.  I know it is dealt with in the way it is, but as I understand it there are provisions in the Police Powers and Responsibilities Act 2000 which may suggest there was not any power of arrest at all. I am looking at section 198, “Arrest Without Warrant”. Is that the relevant section that governs the police powers of arrest without warrant?

MR KEANE:   Your Honour, I am, with respect, not in a position to answer Your Honour about that, it not having been a matter that has been raised.  The point that I was making ‑ ‑ ‑

GAUDRON J:   But it may be an important question in itself, that issue that is being raised by the learned President.  Let me read you section 198:

(1)  It is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an offence ‑

Well, if there is no offence there is no offence.  Then it goes on:

if it is reasonably necessary for 1 or more of the following reasons‑

(a)  to prevent the continuation or repetition of an offence or the commission of another offence -

which seems to be the only one relevant, unless it is:

(g)  to preserve the safety or welfare of any person, including the person arrested ‑ 

It just seems to me that it is not entirely clear that the other offences can be made out.

MR KEANE:   Your Honour, the point that the President was making in paragraph [31] was the point that the police officers were relevantly acting in the course of their duty, they having a reasonable apprehension of the commission of an offence.  That being so ‑ ‑ ‑

GAUDRON J:   But where does that duty come from?  That is what I am ‑ having looked at this Act, where does that duty come from?  Where do you find a duty spelt out in this Act in a way that is consonant with what the learned President said?

MR KEANE:   Your Honour, the learned President has referred to longstanding authority, Veivers v Roberts.

GAUDRON J:   Unfortunately, it is a new Act, 2000.

MR KEANE:   Yes, but the effect, in our respectful submission, under the new Act is not to alter the law in the respect that if the police reasonably apprehending the commission of an offence act in the reasonable and honest belief that they are preventing the commission of an offence, then resistance to them is itself an offence.  The other point ‑ ‑ ‑

GAUDRON J:   Where do you find that?  What is the section that makes it the offence?  It is in the Code, is it not?

MR KEANE:   These offences were offences under the Vagrants Gaming and Other Offences Act and the Criminal Code, yes.

GAUDRON J:   Yes.  That refers to the duties, does it not?  I think one of them defines “duties” to include a function, and then one has to go to the Police Powers and Responsibilities Act ‑ ‑ ‑

MR KEANE: Which we apprehend is section 120 of the Police Powers and Responsibilities Act 1997, the text of which your Honours will find at page 97 of the record, which says ‑ ‑ ‑

GAUDRON J:   What has happened to the 2000 Act?

MR KEANE:   At the time of the offence, your Honours, it was the 1997 Act that was in force.

GAUDRON J:   Very well.  Well, what did that say about powers of arrest?

MR KEANE: We will turn that up. Perhaps we will not turn that up, your Honours. We were looking at the powers conferred, or the provision, contained in section 120, the text of which is at page 97 of the record.

GAUDRON J:   Yes, but it has to be in the performance of his duties.

MR KEANE:   Yes, and a reasonable apprehension.

GAUDRON J:   Are his duties defined?

MR KEANE:   Your Honour, whether or not there is a definition of “duties”, in our respectful submission, the Constable’s common law duties to prevent apprehended breaches of the peace, or reasonably apprehended breaches of the peace, would justify a conclusion the Constable was acting in the course of his duty.

GAUDRON J:   For my part I am very interested to know how the Police Powers and Responsibilities Act relates to the common law.

MR KEANE:   Your Honour, unfortunately, it not having been a question that has been raised, I am not in a position to assist your Honours with that.  The point I was wish to make in relation ‑ ‑ ‑

GAUDRON J:   Is it not the common law that a citizen is entitled to use self‑defence in the case of wrongful arrest?  Is not a wrongful arrest itself an assault which, under the common law, a person is entitled to use reasonable force by way of self‑defence.  Is that not the common law position?

MR KEANE:   In our submission, the question is whether there is an offence involved in resisting the arrest.  If the arrest is itself lawful because of a reasonable and honest apprehension of the commission of an offence then the resistance is itself an offence.  That is the effect of the decision in Veivers v Roberts.

GAUDRON J:   Well, that is what the common law ‑ that is what is said by the learned President.  But what if one goes to ‑ I am looking now at section 198(2) of the 2000 Act.  I do not know if that is the present position but it says:

Also, it is lawful for a police officer to arrest, without warrant, a person the police officer reasonably suspects has committed or is committing an indictable offence, for questioning the person about the offence, or investigating the offence, under chapter 7.

That seems to link it to “indictable”.  It just seems to me that things may well have changed with the enactment of this law.

MR KEANE:   Your Honour, they may well have.  I am sorry not to be able to be of more assistance to you on the point.  They may well have changed with the enactment of the 2000 Act, but as we say it was not the 2000 Act that applied.  It was the 1997 Act.

GAUDRON J:   And you cannot tell me what was in that Act, on that issue?

MR KEANE:   We cannot tell your Honour what was relevantly in controversy in that Act because there was not relevantly a controversy about it that has been agitated thus far.  The point that we were seeking to make to your Honours in terms of the suitability of the case as a vehicle is the point made in paragraph [32] of her Honour’s judgment, that whatever the outcome in relation to the resist arrest offences there would not be a different result in the case because of what ‑ ‑ ‑

GAUDRON J:   Well, I am not sure about that.

MR KEANE:   Because of what her Honour has set out there in relation to the ‑ even without these offences, even if these offences did not stand, the sentences that had been imposed in respect of the other offences would remain because ‑ ‑ ‑

GAUDRON J:   Assuming you can make good that there it is now part of a police officer’s duty to arrest without warrant in circumstances in which he or she reasonably believes that a non‑indictable offence has been committed.

MR KEANE:   Your Honours, in relation to that question, what we would say obviously is that does not raise any constitutional question.  It does not raise any issues in which the party for whom we appear are interested.  They are matters of interest to the first and second respondents.  In relation to that, might I invite your Honour to put those questions to our learned friend for the first and second respondents.

GAUDRON J:   Thank you, yes.  Yes, Mr Gibson.

MR GIBSON:   Your Honours, as to the point last raised, it is the case that the 2000 Act did not commence operation until after the relevant date in this case.  However, it appears that the legislative provision to which your Honour Justice Gaudron was referring may well be identical, or at least materially so, to the provision then in force.  Might I ask your Honours to look at the record at page 6 where, in the judgment of the Stipendiary Magistrate at lines 45 onwards his Worship referred to the relevant provision then in force which was section 35.  I invite your Honours to read over the page.

GAUDRON J:   Yes, it looks as though it might well be the same.

MR GIBSON:   Yes.  That then picks up the provisions of the Criminal Code and the later provision of the Police Powers and Responsibilities Act, to which the Solicitor‑General referred, at record page 97. In this case the applicant was charged with a serious assault under section 340 of the Criminal Code Act.

GAUDRON J:   But that all occurred in the course of resisting arrest.

MR GIBSON:   Indeed, that is so.  Might I ask ‑ ‑ ‑

GAUDRON J:   And I thought that self‑defence was a defence to an assault, and this applicant raises that issue in his application, does he not?

MR GIBSON:   I am not sure that it was put in terms of self‑defence as such.  He put it in terms of the basis that he did not recognise the lawful authority of the police officer and thereby sought to resist conduct of the police officer which he considered to be unlawful.

The critical point for present purposes being that referred to by her Honour the President at page 54 of the record, at about lines 15 to 20 was a reference to an earlier judgment of the Queensland Full Court in Veivers v Roberts.  Now, I appreciate the Court does not have a copy of that.  That is because this was not an issue raised in this application, but might I ‑ ‑ ‑

GAUDRON J:   But it is raised, is it not?  The applicant raises it.

MR GIBSON:   He raises it in a consequential way.  It is true that his contention is that if section 7(1)(d) is held not to be a valid enactment then he does contend that he was wrongly convicted of those offences.

GAUDRON J:   That is right.

MR GIBSON:   He does make no further submissions.  Now, the point that the Solicitor‑General raised is ‑ ‑ ‑

GUMMOW J:   Anyhow, we have Veivers.  Is there anything you want to get out of Veivers?

MR GIBSON:   Yes, your Honour.  The provision there under consideration appears in the report at page 228F.  The passage in the judgment, upon which her Honour the President was undoubtedly relying, was at page 228G to 229A.

GUMMOW J:   Just a minute.  Yes, the problem is the phrase “misapprehension as to the law”.  Does that mean as to the existence of a law at all, or the application disputed on this particular law?

MR GIBSON:   Their Honours’ observations are applicable to the circumstances of this case, in our submission, as her Honour realistically and accurately said at record page 54.  The first few lines ‑ actually, it commences at the foot of the previous page:

The police officers could not have known that the long‑standing provision under which they acted in arresting the appellant were unconstitutional.  In arresting the appellant they were enforcing ‑

or perhaps I should say in defence, purporting ‑

enforcing a law which they honestly and reasonably believed was the law of Queensland ‑ ‑ ‑

GUMMOW J:   No, were enforcing a purported law.

MR GIBSON:   I take your Honour’s point.

GUMMOW J:   Yes.

MR GIBSON:   Nevertheless, in our submission, the thrust of the observation in Veivers and the thrust of the point which her Honour, and which incidentally, I might say, was adopted also in the judgment of Justice Thomas and impliedly Justice Davies is that the police officers here were acting in terms of section 35 ‑ ‑ ‑

GAUDRON J:   Of what Act?

MR GIBSON:   Of the Police Powers and Responsibilities Act.  The section referred to at page 6 of the appeal record.

GUMMOW J:   Thank you.

MR GIBSON:   They did reasonably suspect that an offence had been committed.  Apparently no issue was taken about that by the applicant and, accordingly, they were entitled to act in accordance with that provision and the arrest of the applicant was lawful notwithstanding ‑ ‑ ‑

GAUDRON J:   You have to say it is lawful under whatever the provisions were, of the Police Powers and Responsibilities Act, do you not?

MR GIBSON:   Yes, and we do say that with respect, your Honour.  We say that the arrest was nonetheless lawful not ‑ I will put it in as a matter of principle ‑ an arrest may be nonetheless lawful under section 35 of the Police Powers Act notwithstanding that the person arrested is subsequently acquitted and, we would say, notwithstanding that the provision under which he is charged with an offence is later held not to be constitutionally valid.

GAUDRON J:   But you also have to go on to say, have you not, that there is a common law power of arrest without warrant over and above the power of arrest without warrant in the Police Powers and Responsibilities Act, or that the power of arrest falls within the terms of whatever the relevant section was at the time of these offences.  If the arrest was not authorised by the Act then it was an unlawful arrest.  If the Acts supplants the common law, and it looks to me as though it might well do that, and the arrest is not lawful under the Act, then it is an unlawful arrest.  Forget about the police officer’s duties.  It is an unlawful arrest, is it not?

MR GIBSON:   Whether the arrest is unlawful, your Honour, with respect, turns on the operation of section 35.  In our submission, an arrest in the circumstances to which your Honour has referred would be unlawful under section 35 only if the police officer concerned had no reasonable suspicion that an offence had been committed.  To that extent, therefore, we submit that we are not driven to rely on any principle of the common law but rather on this statutory authority.

GAUDRON J:   Where is section 35 again?

MR GIBSON:   At the foot of page 6 of the record, your Honour.

GAUDRON J:   I am sorry.  What I am talking about is:

if it is reasonable and necessary for a number of reasons set out in that section, including subparagraph (a), “To prevent the continuation or repetition of an offence” ‑ ‑ ‑

MR GIBSON:   Yes, but the governing words ‑ ‑ ‑

GAUDRON J:   Well, you have to say the offence was then, relevant to this one, handing out the pamphlets, do you?

MR GIBSON:   Yes, and making the insulting statements to the police officer to the effect that he was corrupt.

GAUDRON J:   And you have to say that “offence” there means not an offence which is created by law but one which has purportedly been created by law?

MR GIBSON:   With respect, your Honour, we do not have to go that far.  The governing words, in our submission, remain the words appearing on the last line at paragraph 6.  They govern the operation of that provision.  So that it ‑ ‑ ‑

GUMMOW J:   No they do not.  There is a condition precedent, is there not?  The first line on page 7.

MR GIBSON:   It is a matter of interpretation of course, but in our submission, your Honour, that is not the case.  That provided the police officer holds the reasonable suspicion that it is reasonable and necessary, among other things to arrest “To prevent the continuation or repetition of an offence” then he is acting lawfully under section 35.  But it is necessary for me to say, or to submit, that this point which has been the cause of my submissions arises out of a submission made by the Solicitor‑General to the effect that this case is not an appropriate vehicle for the grant of special leave ‑ ‑ ‑

GUMMOW J:   You are quite right.

GAUDRON J:   I do not think that is entirely true.  It is raised in the applicant’s written submissions, which is why I went looking for the Police Powers and Responsibilities Act.

MR GIBSON:   Be that as it may, with respect, putting this issue to one side, it is our submission ‑ and we do so by way of adoption of the submissions made by the Solicitor‑General ‑ that the identification of the applicable tests under Lange and the application of those principles, particularly the second limb in Lange, was unexceptional by the majority of the Court of Appeal and for that reason and, we are content to say, for that reason alone special leave ought be refused in this case, quite apart from the merits or otherwise of the consequential issue to which we have been referring.

GAUDRON J:   They only arise really were it to be held that the provision is invalid in its application for political speech.

MR GIBSON:   Yes, that is so.  Your Honours, those are our submissions, unless there are any further points which your Honours wish to raise with me.

GAUDRON J:   Mr Solicitor and Mr Gibson, we are minded to grant special leave in this matter but would we be correct in assuming that were special leave granted, either that there would be legal aid made available to this gentleman to be properly represented or that some member of the Queensland Bar would be willing to appear pro bono for him?

MR GIBSON:   Your Honours, speaking for the first and second respondents, I am afraid I am unable to answer either of those questions but I can say that there are procedures available in this State for a person such as Mr Coleman to apply for legal aid and there are informal arrangements of the second character to which your Honour has referred.

GAUDRON J:   We propose to direct the applicant to apply in accordance with whatever procedures are available in Queensland for the grant of legal aid or for the provision of pro bono legal representation, so that the constitutional issues in this case can properly be argued and we propose to grant special leave with that direction.

There will be a question as to the preparation of the appeal books.  I assume that, if necessary, the respondents could undertake that burden, could they?

MR GIBSON:   Again, speaking for the first and second respondents, I am sure I can give your Honours that assurance.

GAUDRON J:   Yes, very well.  What we propose to do is to grant liberty to the parties to apply on 7 days notice to Justice Gummow should there be need for further directions.

MR GIBSON:   Yes.  Thank you, your Honours.

GAUDRON J:   Those matters having been said, we will simply note that there will be a grant of special leave.

AT 10.03 AM THE MATTER WAS CONCLUDED

UPON RESUMING AT 11.43 AM:

GAUDRON J:   In this matter earlier this morning there was a grant of special leave.  It is important to indicate – and for this purpose counsel need not be present – that implicit in the grant of special leave was an extension of time within which to bring the application.

AT 11.44 AM THE MATTER WAS CONCLUDED