Dowling v Robinson

[2005] QDC 171

[2005] QDC 171

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 158 of 2005

JAMES JOSEPH DOWLING	Appellant
and
KENNETH JOHN ROBINSON	Respondent

BRISBANE

..DATE 06/06/2005

JUDGMENT

CATCHWORDS:  Appeal from Magistrate to District Court from conviction - "public nuisance offence" under s 7AA of Vagrants, Gaming and Other Offences Act 1951 - appellant disrupted a Meet the Candidates meeting in a public hall by purporting to effect a citizen's arrest of the Liberal candidate - justification put up was a purported "warrant" in the name of a citizens' group based on alleged war crimes to
do with Iraq, etc - Magistrate considered common law and statutory provisions that might authorise the purported arrest - appellant's belief the candidate was answerable for war crimes was rejected as lacking the requisite reasonableness - appeal dismissed - no special circumstances to justify reception of further evidence on appeal (of similar effect to that addressed before the Magistrate) - Justices Act 1886, s 223.

HIS HONOUR:  Mr Dowling appeals against his conviction by a

Magistrate after a hearing on 17 November last year at Petrie

Magistrates Court of an offence against section 7AA of the

Vagrants, Gaming and Other Offences Act(VAG Act). The penalty

imposed was a fine of $200, in default eight days'

imprisonment, a conviction being recorded.  Mr Dowling was

allowed seven days to pay, but declared an intention not to

"be paying any fines for serving my country".  The sentence

was handed down on 23 December 2004, the date on which the

Magistrate Mr Halliday reserved his decision, and that passage

quoted indicates that Mr Dowling presented as pursuing points

of principle.

From any point of view they are important points of principle

that he's pursuing.  They concern chiefly the legality and

morality of the war which the "coalition of the willing",

including Australia, has been committed to in Iraq, but

extends rather more widely.

The section under which the prosecution was brought came into

effect on 1 April 2004.  The charge against Mr Dowling was

that on the 23rd day of September 2004 at Dayboro in the

Magistrates Courts District of Caboolture he committed a

public nuisance offence.  "Public nuisance offence" is defined

in section 7AA(2) as committed if a person "behaves in an

offensive way and the person's behaviour interferes or is

likely to interfere with the peaceful enjoyment of a public

place by a member of the public."  The place was a community

hall at Dayboro and the occasion was a "Meet the Candidates"

evening organised by the local progress association in

relation to the 2004 Federal election.  Apparently about 50

interested citizens attended.  Four of the six candidates

attended, including Mr Peter Dutton, the Liberal candidate.

He had come under the attention of Mr Dowling and some

like-minded people who are associated in a group called

"Citizens Against Terrorism".  The material before the

Magistrate indicates that Mr Dowling at least had been

pursuing his opposition to war in Iraq since before the war

commenced, by communications with Mr Dutton in particular.

Mr Dowling went to the meeting armed with a document headed

"WARRANT" for the arrest of Mr Dutton which gave particulars,

most of which are given by reference to the Iraq war, although

the word Iraq is not mentioned.  Certain of the "Nuremberg

principles" are cited, likewise the Australian Anti-Personnel

Mines Convention Act 1998 and the Geneva Convention.  The

"warrant" also alludes to charges to do with conspiracy and

the detention of Australian citizens at Guantanamo Bay.

The document is dated the date of the meeting and signed by

Mr Dowling himself but in the name of the group.  He was armed

with this document when he laid hands on Mr Dutton at or in

the minutes before the scheduled 7.30 p.m. commencement of the

Meet the Candidates function.  The attempted arrest and the

touching of Mr Dutton occurred both before and after warnings

by the chairman of the meeting, Mr Bradley, who then requested

the assistance of the respondent, a police officer, who was at

the meeting.  That assistance was forthcoming.  The respondent

ejected Mr Dowling from the meeting, took him to the police

station where the "warrant" was produced.  It seems there was

a faction at the meeting which supported Mr Dowling's

activities there and others who obtained some amusement from

observing them.  I think it's obvious that if a stop hadn't

been put to them, the meeting would have been disrupted and

could not effectively have taken place.

The complaints against the Magistrate include that he appeared

to be anxious to complete the hearing quickly and might not

have been receptive to Mr Dowling's presenting or running the

case as fully as he would have liked to.  Unfortunately the

statement attributed to the Magistrate and said to indicate

that from before the outset he was concentrating on the clock,

so to speak, does not appear in the transcript.  Mr Dowling

has explained that the Magistrate made those comments before

the parties went outside to discuss matters - at his

suggestion.  It wasn't until later in the day that the matter

came on.

Having read the transcript or nearly all of it, I find no

indication at all there that the Magistrate cut Mr Dowling

short.  He responded at the end to the Magistrate's inquiry

that he had no further witnesses to call.  He had given

evidence himself and called Ms Rampa.

I don't think there's anything in the complaint that the

Magistrate in proclaiming that "the Court is always fair" had

acted improperly or revealed any bias or anything of that

kind.  I agree with the respondent's submissions that the

Magistrate was simply giving a general description of the way

in which courts are expected to act.  In this case I am in no

doubt that the Magistrate did act in that way.

The legislation under which the charge was brought is

relatively new and somewhat experimental.  Subsection (6)

provides that "as soon as practicable after 18 months after

the commencement of this section the Crime and Misconduct

Commission must review the use of this section."  The

Commission is required to consult with the Minister and to

produce a report for the Legislative Assembly.

It will be noted that the new offence can occur only in a

public place.  The definition of public place which used to be

in the Act has unfortunately become somewhat ambulatory in the

sense of being relocated.  There are definitions in other

legislation such as the Criminal Code and the Police Powers

and Responsibilities Act which is the principal Act being

amended in the 2003 Act which established section 7AA and

which is number 2 of 2003.  It hasn't been contended that the

hall was not a public place on the occasion in question.  I

have consulted the explanatory notes which accompanied the

relevant Bill in the 2003 statutes at page 2657.  Section 7 of

the VAG Act is gone and replaced by part 2A.  Quality of

community use of public places.  The object of the new part 2A

is ensuring "that members of the public may lawfully use and

pass through public places without interference from unlawful

acts of nuisance committed by others".

Examples are ventured in the explanatory notes of what might

and might not be a public nuisance.  Interestingly, one may

call another person a slut in the public bar of a hotel with

more impunity than in a shopping centre or park.  Likewise,

using obscene language in a mall or street is seen as more

problematic than doing so in the public bar of a hotel in the

course of a conversation.

To the extent that the explanatory notes are helpful at all,

the next illustration is of interest; it opines that a

person who disrupts a church service may commit the new

offence.  This seems to show that it can be committed inside

places like halls in the view of the author of the explanatory

notes.

It hasn't been suggested the hall wasn't a public place,

as I have said.  I think that it was one.  I also think that

the Magistrate's decision that Mr Dowling behaved in an

offensive or disorderly way there with the consequences

section 7AA(2) envisages is correct.  The case was about was

the justification asserted by Mr Dowling for his actions and

whether that was a defence.  The Magistrate accepted, and I

would think correctly, that if the same actions had been

carried out by a police officer with similar consequences from

the point of view of disrupting the meeting, the police

officer, if complying with relevant statutory requirements,

would have a good defence.  Mr Dowling lacks the protection

which the police officer might have.  It should not be thought

that I am suggesting that any police officer who purported to

effect an arrest on the basis relied on by Mr Dowling would be

acting lawfully.

The offending which he attributes to Mr Dutton may be

summarised as "war crimes".  I made it clear to Mr Dowling

that the Court accepts that his view that war crimes had been

committed by Mr Dutton is genuinely held by him and indeed by

others, perhaps.  That does not justify the citizen's arrest

which he purported to effect. 

Denied assistance by the participants at the trial in relation

to the legal issues that arose, the Magistrate carried out his

own research which appears to me to have been thorough and

produced correct reasoning.  Once again, in the appeal there

has been no argument about that, although understandably Mr

Hungerford-Symes for the respondent has adopted the

Magistrate's analysis.

The first justification for the arrest might be thought to be

the warrant mentioned above.  The issuing authority is said to

be the citizens' group mentioned and clearly it has no

authority which a Court in this country would recognise to

authorise interference with any citizen's liberties.  The

warrant may be set aside.

The Magistrate next looked at a citizen's arrest at common

law, citing sources such as Halsbury (4th) Vol 11: 107-112 and  

Glanville Williams' article, "Arrest for Felony at Common

Law", 1954 Criminal Law Review 400 at 420.  In making

reference to those and other sources, including the case of

Watters v W H Smith & Son Ltd [1914] 1 KB 595, he said that:

"Assuming that the common law citizen's power of arrest
   extends to alleged offences occurring outside the State
   of Queensland and of the Commonwealth of Australia, I am
   not satisfied that there has been any evidence adduced on
   behalf of the defendant that any such felony, in
   particular any war crime or offence against humanity,
   was, in fact, committed by Mr Dutton and that he, the
   defendant, had any reasonable and probable cause for
   suspecting that Mr Dutton had personally committed any
   such alleged offence."

In that passage, which adequately states the text indicated in

the sources used,  is the crux of the Magistrate's reasoning

which runs through the whole of his judgment.  I think

Mr Dowling has misunderstood the Magistrate's approach, taking

it as one of denial that the sad events in Iraq in recent

times, or then recent times, had been occurring.  It seems to

me that what the Magistrate is saying is that Mr Dowling had

not persuaded him that he had any "reasonable" belief or

suspicion.  The reference to reasonableness shows that it is

objective considerations that are of concern and not the more

subjective ones personal to Mr Dowling.

As I understand it, and Mr Dowling has confirmed this today,

at the time of the meeting Mr Dutton was a backbench member of
the governing coalition in Canberra.  He is now a junior

minister, Mr Dowling's interpretation being that this is a

reward for his active support of what Australia has done in

relation to Iraq.

Part of the material relied on before the Magistrate, Exhibit

6, was a letter of Slater & Gordon Lawyers to the Prime

Minister dated 20 March 2003 and written "on behalf of 41

affiliates of the Victorian Peace Network".  That letter

advised the Prime Minister:

"You and your senior ministers can be held personally and
   criminally responsible for complicity in crimes committed
   during a military campaign."

If Mr Dowling read that letter, it appears to me he would have

known it contained no support for his argument that Mr Dutton

as a backbencher, however supportive he might have been of the

government's policies, might come under personal and criminal

responsibility.  It is an extension of the solicitors' view to

rope him in.

The next bases for a citizen's arrest canvassed by the

Magistrate came from the Commonwealth Crimes Act 1914 in

section 3Z:

"A person who is not a constable may, without warrant,
     arrest another person if he or she believes on reasonable

grounds that the other person is committing or has just committed an indictable offence."

The Magistrate emphasised the second "is" and "has just", also

noted section 268:

"A person commits an offence if the perpetrator causes
   the death of one or more persons and the person or
   persons are protected under one or more of the Geneva
   Conventions or under Protocol 1 to the Geneva
   Convention."

The difficulty which Mr Dowling faced was in convincing the

Magistrate, not that he believed certain things, but that he

believed them "on reasonable grounds".  Exactly the same

considerations arise under the Criminal Code of Queensland.

Section 546 deals with arrest without warrant and section 260

with preventing a breach of the peace.  It was not really

suggested that the State provisions were applicable, but they

do have in them a similar idea to section 32 which is some

notion of recentness in the relevant offence.

Mr Dowling has failed to persuade me any more than he could

persuade the Magistrate that, applying the objective test,

which I think is appropriate, there was a reasonable basis for

regarding Mr Dutton as guilty of war crimes.  The Court is not

one of public opinion or of morality.  There is no necessity

here to venture into the difficult questions that arise about

the implication of principles of international law into the

domestic law of this country.

From the point of view of many the analysis of what happened

would be that Mr Dowling decided to take advantage of the

occasion to make a gesture which might and did attract

publicity for his cause.  Whether or not he genuinely believed

what he did was justified is, I think, only one of the

relevant matters.  He fails the reasonableness test.

Most, I think, would be happy with an outcome in this

proceeding to that effect.  It was a mischievous action to

disrupt a public meeting which had been promoted with some

trouble for a very commendable public purpose, which is

apparently in line with something of a tradition in Dayboro.

It has not been shown there was the slightest necessity for

Mr Dowling to choose this occasion for his gesture.  He really

should regard himself as fortunate that he is charged with the

summary matter in question and not with something more serious

that is potentially open, such as assault under the Criminal

Code.  It may well be that Mr Dutton would not have wished to

pursue that, even if he had been offered the opportunity.

About that I know nothing.

I should record that he has been in touch with the registry of

the Court last Friday in relation to Mr Dowling's interest in

having him called as a witness in the appeal - replicating an

interest which had been expressed at the trial.  Mr Dutton did

not attend the Court but informed the Court that he was

contactable by phone throughout today and could have got here

on 45 minutes' notice if required.

Mr Dowling does have another witness here who has recently

been to Iraq and is willing to give evidence regarding

conditions there to the effect that the statements that

Mr Dutton might have made about conditions are "lies", to use

Mr Dowling's term.

Section 223(2) of the Justices Act requires special

circumstances before additional evidence is permitted to be

produced on appeal.

The test as set out in that section or as expounded in the

case of Clarke v. Japan Machines (Australia) Pty Ltd [1982]

1 Queensland Reports 404 has not been satisfied in any event.

As I have attempted to make clear to Mr Dowling, the Court

does accept that there would be millions around the world,

maybe even in Australia, who take the same view of events in

Iraq as does he.  It was unnecessary to have the Court proceed

(given that acceptance) to add further evidence to the same

effect or to trouble Mr Dutton on the off-chance that

admissions of some kind might have been extracted from him.

The consequence of all this is the appeal should be dismissed

and will be.

Does that cover everything?

MR HUNGERFORD-SYMES:  Is your Honour minded to hear
submissions with regard to costs?

HIS HONOUR:  That it should be dismissed with costs?

MR HUNGERFORD-SYMES:  The respondent submits - I am in
your Honour's hands obviously but the respondent would submit
that costs of the amount of $1,000 would be applicable in this
situation in light of the fact that Mr Dowling's actions are
tantamount to an abuse of process.

HIS HONOUR:  You can get an order for costs, can't you?

MR HUNGERFORD-SYMES: Under the Justices Regulation 2004 it's
all under the scale, on my understanding.  It's a maximum of
$1800 and so, yes, it's no longer taxed.  It's rather an order
from yourself - from the Court.

HIS HONOUR:  Are you an in-house advocate?

MR HUNGERFORD-SYMES:  Indeed, yes, I am with the Director's
office.

HIS HONOUR:  If I order costs, it's just a contribution to the
Director's budget.

MR HUNGERFORD-SYMES:  No, it goes to the Queensland Police
Service.  The Director acts on behalf of the Queensland Police
Service.  It goes to the Queensland Police Service.

HIS HONOUR:  Does the Director send a bill to the police
service?  Who will get the money?

MR HUNGERFORD-SYMES:  The Queensland Police Service.
Mr Robinson is the respondent.  We obviously acted on behalf
of him and he is of the Queensland Police Service so
technically the Queensland Police Service is our client.

HIS HONOUR:  You are saying it should be $1,000.

MR HUNGERFORD-SYMES:  Yes.  I don't ask for the maximum.  As I
said, it's 50 per cent - plus or minus 50 per cent, taking it up to $1,000.  One, it's tantamount to an abuse of process by
Mr Dowling, plus, with all due respect, he seems to have
attempted to try to turn the Court into his own personal soap
box.  My understanding is the media presence here was at his
direction but I am in your Honour's hands.

HIS HONOUR:  What do you want to say about that, Mr Dowling?

APPELLANT:  Obviously I don't think I should have to pay any
costs.  I think perhaps the Court could pay me for my time and
service to the community.  It would probably be a much better
option.

HIS HONOUR:  I think Mr Hungerford-Symes is correct.  You
really have taken this opportunity to use the Court as a forum
to restate your views rather than focus on the legal issues
that were involved.  I will go halfway.

Appeal dismissed.  Appellant ordered to pay respondent's costs

which I will fix at $500.

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