Coolwell v Koster - [2006] QDC 68

No judgment structure available for this case.

[2006] QDC 068

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE BRABAZON QC
No BD 1641 of 2005

EMILY MARIE COOLWELL Appellant
and
DAVID KOSTER Respondent
BRISBANE
..DATE 13/03/2006
ORDER

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

HIS HONOUR: This appeal raises issues which I should think

1

are undoubtedly of considerable importance in the
administration of criminal justice. Put very broadly, the
question is this: To what extent can impropriety or
unlawfulness on the behalf of the arresting police officers

result in the exclusion of evidence about things that an 10
accused person might do afterwards, in particular with regard
to the accused person's conduct towards police. It is
necessary to turn briefly to the facts before considering the
arguments here.
20

The appellant here was a 17 year old Aboriginal girl. It seems that there was noisy and unruly conduct on behalf of a group of young Aboriginal people, including her and two police
officers. There are issues about the conduct of the arresting
police officers. As I said to counsel, my assumption here, 30
for today's purposes, is that the police officer or officers

acted improperly or unlawfully in arresting Miss Coolwell. They did arrest her for committing a public nuisance. The police officers were interested in the group because they said
they were sniffing paint. It seems that one of the police 40
officers spoke to Miss Coolwell and wanted to see if she was

carrying any paint. The police officer says that insulting and obscene words were then used. In any event, the result was that Miss Coolwell was arrested in an Inala suburb and
taken to the then new Redlands watch-house. It is what 50
happened there that is the subject of this appeal.

The evidence is that she was at the watch-house for almost two hours. She was put in a bulk holding cell. At first she was

2

ORDER

60

1

with other people, and towards the end she was by herself.
After arriving at the watch-house the police conducted some
further checks and they showed, apparently, that she was
wanted in relation to some other matter. She was taken from

the holding cell to an interview room and was interviewed 10
about this other matter. At the end of the interview she was
given a notice to appear on some later occasion. The watch-
house keeper described that as being charged, and it may be
both in police parlance and in substance there is not much
difference between the two things. 20
The important thing is she was then returned alone to the

holding cell. She was observed on closed circuit television. At what seems to have been about an hour and a half after her arrival at the watch-house, the closed circuit television

30
revealed that she was doing something on the wall. An
inspection showed that she had scratched her initials and the
date, "EMC 04". Miss Coolwell told those at the watch-house
when they asked her, that she scratched her initials and year
into the wall with a small pendant from her necklace. 40

Apparently it was metal and sharp enough to make a scratch on the new paint. The evidence is that she said that, "I couldn't help it."
She was charged with an offence. In due course she was 50
convicted before the Magistrate. The charge was that of
wilful damage under section 7 of the Regulatory Offences Act
1985. No conviction was recorded and the Magistrate found
that she had no capacity to pay, and so she was not ordered to

3 ORDER 60

pay any compensation. The absolute release was pursuant to 1
section 90(1)(a) of the Penalties and Sentences Act. It is
against that conviction that this appeal is brought.

It needs to be understood how the matter was dealt with in the Magistrates Court. Because a challenge was made to the admissibility of the evidence about the scratching of the initials, the whole matter was treated as a voir dire. As the learned Magistrate put it, the voir dire was part of a submission that he not admit all of the evidence in the case against her, and he then dealt with that submission. He found on the facts that in his view the police had not unlawfully arrested Miss Coolwell.

10
20
He then turned to the question of the events at the
30
watch-house. He found that she voluntarily participated in
the interviews. Apparently, he accepted some evidence to that
effect. In his opinion a stay of the proceedings was not
warranted and the damage to the watch-house did not diminish
the nature of the offence. As he put it:
40
"In no way can I be satisfied that the bringing of a
charge is vexatious, oppressive or unfair, and I
certainly cannot be satisfied that the bringing of the
charge of wilful damage under the Regulatory Offences Act
could possibly bring the administration of justice into
dispute...the application to stay the proceeding is
dismissed."

50

It is against that finding, in effect, that the appeal is
brought. That being the finding, and Miss Coolwell indicating
through her representative that no further evidence would be
called, she was then convicted.

4 ORDER 60

It is helpful to consider her case on the assumed basis that
the learned Magistrate's decision is unsustainable and that
the arrest was improper. The appellant by her counsel raises
a number of matters in her favour. Importantly, the

submission deals with the questions of causation and the 10
exercise of the discretion. The significant parts of the
submission were to this effect:
"But for the arrest, the wilful damage could not have
occurred. It is submitted that this alone is enough to
satisfy the requirement of causation (though not
necessarily to compel the exercise of the discretion).

However, there are further points relevant to the issue 20
of causation -
(a) the appellant was only 17 years old;
(b) she was detained for a period of almost two hours;
(c) she was distressed;
(d) she stated explicitly as to the wilful damage that

'She couldn't help it'; 30

(e) the destruction of property and various forms of self-mutilation are also widespread and rule governed expressions of grief and distress in Aboriginal
societies. (Quoted from 11.10.16 National Report, Royal
Commission into Aboriginal Deaths in Custody).
The obvious inference to be drawn is that the distress of
her unlawful arrest caused the appellant to feel

compelled to express the distress by scratching her 40
initials into the wall."

The submission goes on to deal with the exercise of a
discretion. Mention is made of the principle in Bunning v. V
Cross by way of analogy. As it is put:

50

"The police unlawfully arrested the appellant. It was both DPP v. Carr and Robinett and vital to the question
not necessary or appropriate to do so. There is on the
evidence a serious suggestion that the conduct of
Constable Koster was improper, not in a deliberate or
calculated way but in terms of the standards the
community should be able to expect police to adhere to.

5 ORDER 60

13032006 D.1 T5/SDH (Brabazon DCJ)

of the discretion. Conduct which is unlawful or 1
inappropriate but in a minor way is unlikely to be
sufficient to cause a Court to exercise its discretion to
exclude evidence of a major or significant crime.
However, it must be enough to exclude evidence of a minor
crime. Similarly, significant impropriety may be enough
to exclude evidence not only of a minor crime but of a
major one as well. In this case the offence is trivial;
the impropriety on the part of the police, while

certainly not extending to the level of entrapment, is 10
conduct which was at least improper if not unlawful. A
young woman was, as a result of that unlawful police
behaviour, placed in a position of great distress. The
discretion should be exercised to exclude the evidence
and the conviction should be quashed...The unlawful
arrest was directly related to the act that gave rise to
the charge of wilful damage...".
20

Counsel for the prosecutor, in his submission, put the matter this way with respect to the key considerations:
"The respondent submits that there was no impropriety or
unfairness shown by the police to the appellant. In
addition, the respondent submits that there was no
reasonable expectation that the further offending, namely
the scratching of the appellant's initials and year into

the wall, occurred as a result of police impropriety. 30
There was no related violent offending. There was no
violent action or threat stemming from inappropriate
police omissions to act. There was no impropriety by the
police that would oblige the Magistrate to exercise his
discretion...To be able to warrant the exercise of
judicial discretion and not admit the evidence of later
offending, it must be shown that the causal connection
between any impropriety and any subsequent offence is
more than a mere causal connection, rather the later
offending must be fundamentally interconnected to the 40
original impropriety. See DPP v. Carr 127 A Crim R 151."

In addition, the respondent submits that there is not even a
sufficient causal connexus between the unauthorised damage and

the lawful arrest: that the later unauthorised damage is not interconnected to the arrest. It is not "closely related and interconnected". There was no error in law or fact in the

50

exercise of the learned Magistrate's discretion, it is
submitted.
13032006 D.1 T5/SDH (Brabazon DCJ) 6 60

1

In assessing those submissions, counsel here have pointed to
the significant Australian decisions in this area of the law.
There is no need for me to canvass the well-known principle in
Bunning v. Cross. Rather, attention should be paid to

those cases which show some improper conduct on the behalf of 10

the police, in this case in performing an arrest, and then later conduct by an accused person that would amount to an offence usually against police.

The first case mentioned here is Robinett in the Supreme Court of South Australia, reported at 116 A Crim R 492. It is not necessary in this appeal to engage in a close examination of every significant part of that judgment. The learned Judge thought that three questions arose for consideration:

20
"The first is whether the conduct is of a type that could

give rise to the exercise of the public policy 30
discretion.
2. The second is whether the conduct caused or
contributed to the commission of the offence.
3. If the answer is yes to both those questions, it must
then be asked whether it called for the exercise of a
discretion to exclude the evidence."
40

In that case, there was an arrest and threats against police officers on the same occasion. The judge found, on the facts, that the police officers failure to react appropriately to
complaints by the man being arrested did cause or contribute

to the commission of the offences against the police officers. 50

In his opinion, the omission called for the exercise of the
discretion to exclude the evidence. The Magistrate's decision
was upheld.
13032006 D.1 T5/SDH (Brabazon DCJ) 7 60

1

The matter arose in somewhat analogous circumstances in New
South Wales. See DPP v. Carr 2002 NSWSC 194. The judge there

found that it was open to the Magistrate to find impropriety and recklessness in the arrest. The Court was considering a situation where, at a rather later occasion - that is, at the

10

police station - the arrested man had threatened police. The arrest of Mr Carr and Mr Carr's later use of the threatening language.
20

The statutory basis of the decision lies in section 138 of the Uniform Evidence Act, a section which, it may be pointed out, is not in force in this State. As Smart J put it, at paragraph 70:

"...all of the offences were closely related and 30
interconnected and at the lower end of the criminal
scale. The offences in the evidence stemmed from the ill
advised and unnecessary arrest. A narrow construction
should not be given to section 138(1)(a)(b), nor one that
is unduly broad. This is not the kind of case to apply
the 'but for' test except in a restricted way outlined
above."
40

The learned judge went on to hold overall that the magistrate was entitled to find that the impropriety was reckless and the evidence was excluded.
I need mention only briefly another New South Wales decision

50

of DPP v. Coe 2006 NSWSC 363. It is probable that a more
restrictive approach is shown to these matters than in the
earlier two cases. To some extent, the result depends upon the precise meaning of the word "obtained" in the New South

Wales statute.
13032006 D.1 T5/SDH (Brabazon DCJ) 8 60

1

With those cases in mind, it is necessary to deal with the
present application. It is an important principle that is
being considered. It is important that police officers should

behave properly and that there may be consequences if they do 10
not, including the relief from criminal responsibility on

those who respond because of that impropriety. The question is whether or not Miss Coolwell's conduct here might be such that evidence of what she did in the watch-house should
not be received by a Court. It is possible to imagine that 20
apparent offences committed at a watch-house, and closely
related to the circumstances of the arrest might be in that
category - for example, threats, abuse, and sometimes perhaps
even a personal attack upon those responsible might
conceivably be excused. It is not helpful to say where the 30
range ends.
It is necessary, however, to pay attention to the facts here.
Indeed, it should be kept in mind that she was only 17 years
old from an Aboriginal family and in a difficult situation. 40
On the other hand, the evidence indicates that about an hour
and-a-half passed, including an interview about another matter
and the issue of a notice to appear, before she returned to
the cells and then scratched her name on the wall. There is
no obvious connection between the arrest and the scratching of 50

her name. It did not relate to the actions of the arresting
officer, or officers. It was not done in the heat of the
moment.
13032006 D.1 T5/SDH (Brabazon DCJ) 9 60

1

In my opinion, it is impossible to say that there is such a sufficient connection to enable any discretion to be exercised in her favour.

In my opinion, the learned Magistrate was right to reach the 10
conclusion that he did. Even if a further review of the facts
were to indicate impropriety on behalf of the police, as is
claimed in this case, it would not make any difference about
the end result. It follows that the appeal must be dismissed.
20
...
HIS HONOUR: With regard to the question of costs, I think the
appellant should pay the respondent's costs. That is because
she really did have the benefit of these matters being raised 30
in the Magistrates Court, but then took it further in
circumstances that could hardly be described as encouraging.
It is not, I think, a situation that was close to the
borderline. I don't see why the successful respondent
should not have his costs. 40
Appeal dismissed.
I order that the appellant pay the respondent's costs fixed at
$1,500 by 13 September 2006. 50

-----

10 60

Actions

Download as PDF Download as Word Document

Citations

Coolwell v Koster [2006] QDC 68

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

EMILY MARIE COOLWELL	Appellant
and
DAVID KOSTER	Respondent
BRISBANE ..DATE 13/03/2006
ORDER

result in the exclusion of evidence about things that an	10
accused person might do afterwards, in particular with regard to the accused person's conduct towards police. It is necessary to turn briefly to the facts before considering the arguments here.
20
The appellant here was a 17 year old Aboriginal girl. It seems that there was noisy and unruly conduct on behalf of a group of young Aboriginal people, including her and two police
officers. There are issues about the conduct of the arresting
police officers. As I said to counsel, my assumption here,	30
for today's purposes, is that the police officer or officers
acted improperly or unlawfully in arresting Miss Coolwell. They did arrest her for committing a public nuisance. The police officers were interested in the group because they said
they were sniffing paint. It seems that one of the police	40
officers spoke to Miss Coolwell and wanted to see if she was
carrying any paint. The police officer says that insulting and obscene words were then used. In any event, the result was that Miss Coolwell was arrested in an Inala suburb and
taken to the then new Redlands watch-house. It is what	50
happened there that is the subject of this appeal.

the holding cell to an interview room and was interviewed	10
about this other matter. At the end of the interview she was
given a notice to appear on some later occasion. The watch-
house keeper described that as being charged, and it may be
both in police parlance and in substance there is not much
difference between the two things.	20
The important thing is she was then returned alone to the
holding cell. She was observed on closed circuit television. At what seems to have been about an hour and a half after her arrival at the watch-house, the closed circuit television	30
revealed that she was doing something on the wall. An
inspection showed that she had scratched her initials and the
date, "EMC 04". Miss Coolwell told those at the watch-house
when they asked her, that she scratched her initials and year
into the wall with a small pendant from her necklace.	40
Apparently it was metal and sharp enough to make a scratch on the new paint. The evidence is that she said that, "I couldn't help it."
She was charged with an offence. In due course she was	50
convicted before the Magistrate. The charge was that of
wilful damage under section 7 of the Regulatory Offences Act
1985. No conviction was recorded and the Magistrate found
that she had no capacity to pay, and so she was not ordered to

pay any compensation. The absolute release was pursuant to	1
section 90(1)(a) of the Penalties and Sentences Act. It is against that conviction that this appeal is brought.
It needs to be understood how the matter was dealt with in the Magistrates Court. Because a challenge was made to the admissibility of the evidence about the scratching of the initials, the whole matter was treated as a voir dire. As the learned Magistrate put it, the voir dire was part of a submission that he not admit all of the evidence in the case against her, and he then dealt with that submission. He found on the facts that in his view the police had not unlawfully arrested Miss Coolwell.	10
20
He then turned to the question of the events at the
30
watch-house. He found that she voluntarily participated in
the interviews. Apparently, he accepted some evidence to that
effect. In his opinion a stay of the proceedings was not
warranted and the damage to the watch-house did not diminish
the nature of the offence. As he put it:
40

submission deals with the questions of causation and the	10
exercise of the discretion. The significant parts of the submission were to this effect:

However, there are further points relevant to the issue	20
of causation -
(a) the appellant was only 17 years old;
(b) she was detained for a period of almost two hours;
(c) she was distressed;
(d) she stated explicitly as to the wilful damage that

compelled to express the distress by scratching her	40
initials into the wall."

of the discretion. Conduct which is unlawful or	1
inappropriate but in a minor way is unlikely to be
sufficient to cause a Court to exercise its discretion to
exclude evidence of a major or significant crime.
However, it must be enough to exclude evidence of a minor
crime. Similarly, significant impropriety may be enough
to exclude evidence not only of a minor crime but of a
major one as well. In this case the offence is trivial;
the impropriety on the part of the police, while
certainly not extending to the level of entrapment, is	10
conduct which was at least improper if not unlawful. A young woman was, as a result of that unlawful police behaviour, placed in a position of great distress. The discretion should be exercised to exclude the evidence and the conviction should be quashed...The unlawful arrest was directly related to the act that gave rise to the charge of wilful damage...".
20

the wall, occurred as a result of police impropriety.	30
There was no related violent offending. There was no
violent action or threat stemming from inappropriate
police omissions to act. There was no impropriety by the
police that would oblige the Magistrate to exercise his
discretion...To be able to warrant the exercise of
judicial discretion and not admit the evidence of later
offending, it must be shown that the causal connection
between any impropriety and any subsequent offence is
more than a mere causal connection, rather the later
offending must be fundamentally interconnected to the	40
original impropriety. See DPP v. Carr 127 A Crim R 151."

those cases which show some improper conduct on the behalf of	10
the police, in this case in performing an arrest, and then later conduct by an accused person that would amount to an offence usually against police.
The first case mentioned here is Robinett in the Supreme Court of South Australia, reported at 116 A Crim R 492. It is not necessary in this appeal to engage in a close examination of every significant part of that judgment. The learned Judge thought that three questions arose for consideration:	20

give rise to the exercise of the public policy	30
discretion.
2. The second is whether the conduct caused or contributed to the commission of the offence.
3. If the answer is yes to both those questions, it must then be asked whether it called for the exercise of a discretion to exclude the evidence."
40

found that it was open to the Magistrate to find impropriety and recklessness in the arrest. The Court was considering a situation where, at a rather later occasion - that is, at the	10
police station - the arrested man had threatened police. The arrest of Mr Carr and Mr Carr's later use of the threatening language.
20
The statutory basis of the decision lies in section 138 of the Uniform Evidence Act, a section which, it may be pointed out, is not in force in this State. As Smart J put it, at paragraph 70:

"...all of the offences were closely related and	30
interconnected and at the lower end of the criminal scale. The offences in the evidence stemmed from the ill advised and unnecessary arrest. A narrow construction should not be given to section 138(1)(a)(b), nor one that is unduly broad. This is not the kind of case to apply the 'but for' test except in a restricted way outlined above."
40

behave properly and that there may be consequences if they do	10
not, including the relief from criminal responsibility on
those who respond because of that impropriety. The question is whether or not Miss Coolwell's conduct here might be such that evidence of what she did in the watch-house should
not be received by a Court. It is possible to imagine that	20
apparent offences committed at a watch-house, and closely
related to the circumstances of the arrest might be in that
category - for example, threats, abuse, and sometimes perhaps
even a personal attack upon those responsible might
conceivably be excused. It is not helpful to say where the	30
range ends.
It is necessary, however, to pay attention to the facts here.
Indeed, it should be kept in mind that she was only 17 years
old from an Aboriginal family and in a difficult situation.	40
On the other hand, the evidence indicates that about an hour
and-a-half passed, including an interview about another matter
and the issue of a notice to appear, before she returned to
the cells and then scratched her name on the wall. There is
no obvious connection between the arrest and the scratching of	50

In my opinion, the learned Magistrate was right to reach the	10
conclusion that he did. Even if a further review of the facts were to indicate impropriety on behalf of the police, as is claimed in this case, it would not make any difference about the end result. It follows that the appeal must be dismissed.
20
...
HIS HONOUR: With regard to the question of costs, I think the
appellant should pay the respondent's costs. That is because
she really did have the benefit of these matters being raised	30
in the Magistrates Court, but then took it further in
circumstances that could hardly be described as encouraging.
It is not, I think, a situation that was close to the
borderline. I don't see why the successful respondent
should not have his costs.	40
Appeal dismissed.
I order that the appellant pay the respondent's costs fixed at
$1,500 by 13 September 2006.	50