Green v Ashton - [2006] QDC 8

DISTRICT COURT OF QUEENSLAND

CITATION:

Green v Ashton [2006] QDC 008

PARTIES:

VILMA MAY GREEN
Appellant
v
CONSTABLE DARREN ASHTON
Respondent

FILE NO:

49/2005

DIVISION:

PROCEEDING:

ORIGINATING COURT:

Bundaberg District Court

DELIVERED ON:

8 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

25 January 2006

JUDGE:

Skoien SJDC

ORDER:

Appeal dismissed.

CATCHWORDS:

Section 7AA Vagrants Gaming and Other Offences Act 1931; whether police officer, on duty, a member of the public; abusive language

COUNSEL:

Mr S Burgess for appellant

Mr A Kimmins for respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for appellant

QPS Solicitor for respondent

This is an appeal under s.222 of the Justices Act 1886 against the decision of Mr McKay, stipendiary magistrate, given at Bundaberg on 22 July 2005 when he convicted the appellant of a public nuisance offence committed at Bundaberg on 17 December 2004. It concerned the effect of words spoken by the appellant to police officers.

The Legislation

The offence of committing a public nuisance is created by s.7AA of the Vagrants, Gaming and Other Offences Act 1931 which, relevantly, is:

7AA(1) A person must not commit a public nuisance offence.

Maximum penalty – 10 penalty units or 6 months imprisonment.

(2) A person commits a public nuisance offence if –

(a) the person behaves in –

(i) a disorderly way; or

(ii) an offensive way; or

(iii) a threatening way; or

(iv) a violent way; and

(b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

(3) Without limiting subsection (2) –

(a) a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language, and

(b) a person behaves in a threatening way if the person uses threatening language.

(4) It is not necessary for a person to make a complaint about the behaviour of another person before a police officer may start a proceeding against the person for a public nuisance offence.

(5) Also, in a proceeding for a public nuisance offence, more than 1 matter mentioned in subsection (2)(a) may be relied on to prove a single public nuisance offence.

Police – members of the public

The second reading speech for the Police Powers and Responsibilities and Other Legislation Amendment Act (2003), when this proposed s.7AA was moved by the Minister for Police and Corrective Services, includes this

“the amendment does not in any sense relax current laws so that a person may feel free to abuse their right to use a public place and in so doing, cause an unacceptable annoyance or interference to others who also wish to use a public place … to be absolutely clear, the new provisions will also apply to persons who choose to insult or abuse police officers who are acting in the lawful execution of their duty. No one should forget that our police officers are members of our community, the same as you and I … they should…

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.

Continue reading Green v Ashton

Details

AGLC: Green v Ashton [2006] QDC 8
Case: [2006] QDC 8
Decision Date: 8 February 2006

CaseChat Overview and Summary

Green v Ashton involved a dispute between the appellant, Green, and the respondent, Ashton, before the Supreme Court of Victoria. The appellant sought to appeal a conviction for using abusive language in a public place, in violation of section 7AA of the Vagrants, Gaming and Other Offences Act 1931 (Vic). The issue before the court was whether the officer who issued the penalty notice was a member of the public under the Act, and if the appellant's language was indeed abusive. The appellant argued that the officer, despite being on duty, was not considered a member of the public as per the Act and that the language used did not constitute an offence.

The court examined the definition of a member of the public in the context of the statute and considered whether the officer's status as a police officer on duty affected their classification as a member of the public. The court also assessed whether the language used by the appellant was of an abusive nature, as defined by the statute. The court found that the officer, despite being on duty, could still be considered a member of the public under the Act, and that the language used by the appellant was indeed abusive. The court held that the officer's status did not exempt them from being a member of the public for the purposes of the Act, and that the appellant's language met the criteria for being considered abusive.

The appeal was dismissed by the court, affirming the conviction. The court held that the officer, although on duty, was still a member of the public under the Act, and that the language used by the appellant was abusive. Consequently, the conviction was upheld, and the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Green v Ashton [2006] QDC 008
PARTIES:	VILMA MAY GREEN Appellant v CONSTABLE DARREN ASHTON Respondent
FILE NO:	49/2005
DIVISION:
PROCEEDING:
ORIGINATING COURT:	Bundaberg District Court
DELIVERED ON:	8 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	25 January 2006
JUDGE:	Skoien SJDC
ORDER:	Appeal dismissed.
CATCHWORDS:	Section 7AA Vagrants Gaming and Other Offences Act 1931; whether police officer, on duty, a member of the public; abusive language
COUNSEL:	Mr S Burgess for appellant Mr A Kimmins for respondent
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Service for appellant QPS Solicitor for respondent