Couchy v Birchley

[2005] QDC 334

DISTRICT COURT OF QUEENSLAND

CITATION:

Couchy v Birchley [2005] QDC 334

PARTIES:

MELISSA JANE COUCHY

Appellant

v

IAN PATRICK BIRCHLEY

Respondent

FILE NO/S:

Appeal D4692 of 2004; MAG24557/04, 145, 588/04(9)

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

8 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2005

JUDGE:

McGill DCJ

ORDER:

Appeal allowed, convictions quashed, verdicts of acquittal entered

CATCHWORDS:

CRIMINAL LAW – Identification – “dock identification” – whether circumstantial evidence of identification – summary trial – conviction unsafe

POLICE OFFENCES – Summary Offences – public nuisance offence – charge not tried as particularised – whether finding of “abusive language” open – whether interference with enjoyment of public place

POLICE OFFENCES – Obstructing Police – necessity for person in custody to have been lawfully arrested

Vagrants Gaming and Other Offences Act 1931 s.7AA(2)(b), (3)(a)

Police Powers and Responsibilities Act 2000 s.198

Alexander v R (1980) 145 CLR 395 - applied
Bradbury v Staines, ex parte Staines [1970] Qd R 76 – applied
Coleman v Kinbacher [2003] QCA 575- considered
Coleman v Power (2004) 78 ALJR 1166 – applied
Davies and Cody v R (1937) 57 CLR 170 - applied
Del Vecchio v Couchy [2002] QCA 9 – followed
M v R (1994) 181 CLR 487 – applied
Phelps v Gothachalkenin [1996] 1 Qd R 503 - applied
R v Conway [2005] QCA 194 – considered
R v Demeter [1995] 2 Qd R 626 – applied

COUNSEL:

E. Wilson for the appellant
M. Hungerford-Symes for the respondent

SOLICITORS:

Boe Lawyers for the appellant
Director of Public Prosecutions for the respondent

1. On 1 December 2004 the appellant was convicted after a summary trial of two offences, committing a public nuisance offence and obstructing a police officer in the performance of the officer’s duties, both alleged to have been committed on 30 August 2004. A penalty was imposed. This appeal is brought from that conviction pursuant to section 222 of the Justices Act 1886.

1. Although there were a number of grounds listed in the Notice of Appeal, and a lengthy outline of submissions, and a supplementary outline, on behalf of the appellant, on the hearing of the appeal four particular matters were raised and argued by counsel for the appellant, and it is sufficient to deal with those four matters.  In relation to the first charge, the appellant argued that:

(a)     There was insufficient evidence of identification of the appellant as the person concerned to sustain a conviction.

(b)     The evidence before the magistrate did not establish that the appellant behaved in an offensive way, which is one of the elements of the public nuisance offence.

(c)     The evidence before the magistrate did not establish that the appellant’s behaviour had interfered, or was likely to interfere, with the peaceful passage through or enjoyment of a public place by a member of the public, which is the other element of the offence.

1. In relation to the second charge, it was submitted that the offence had not been committed…