Kris v Tramacchi - [2006] QDC 35

DISTRICT COURT OF QUEENSLAND

CITATION:

Kris v Tramacchi [2006] QDC 035

PARTIES:

Charlotte Emily Kris

(Appellant)

v

Constable David Tramacchi

(Respondent)

FILE NO/S:

63/2005

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates’ Court

DELIVERED ON:

15 February 2006

DELIVERED AT:

Bundaberg

HEARING DATE:

13 February 2006

JUDGE:

Forde DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PUBLIC NUISANCE – “obscene language” – “offensive or disorderly way” – “interfering with or likely to interfere with peaceful passage or enjoyment of a public place” – what constitutes public nuisance – members of the police force as members of the public – where behaviour on both private and public property – whether members of public present in public place.

Vagrants Gaming and Other Offences Act 1931, Pt2A, ss7, 7AA

Acts Interpretation Act 1954, ss 14B(1)(a), 14B(1)(c), 14B(3)

Police Powers and Responsibilities and Other Legislation Amendment Act (2003), ss 444 and 445

Criminal Code, s 340(b)

Bryant v Stone DC 26 October 1990

Butterworth v Geddes [2005] QDC 333

Coleman v Power (2004) HCA 39

Del Vecchio v Crouchy [2002] QCA 9.

Darney v Fisher DC 8 June 2005

Fox v Sawdy ex.p. Fox [1980] Qd R 378

Green v Ashton [2006] QDC 008

MAN v MAM [2003] QDC 398 at 6-7

COUNSEL:

Mr Simon Burgess for the appellant

Mr Scott Collins for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Services for the appellant/defendant

Office of the Director of Public Prosecutions

Introduction

A domestic incident erupted at premises occupied by the appellant. She was intoxicated and was yelling obscenities at 9.20 a.m. on 30 December 2004 during the school holidays. Police attended at her residence at Crofton Street, Bundaberg. She was charged and convicted in the Bundaberg Magistrates Court on 25 August 2005 of committing a public nuisance and was placed on a good behaviour bond with a recognisance of $200.00 with no conviction recorded.

This is an appeal against that decision of the learned magistrate. The grounds of the appeal are that the words used were directed at police and that her conduct does not amount behaviour of a disorderly or offensive way. Also, it is argued that police officers are not members of the public for the purposes of s 7AA of the Vagrants, Gaming and Other Offences Act 1931.[1]

[1] This Act was repealed by the Summary Offences Act 2005 which commenced on 21 March 2005. Section 7AA is replaced by s 6 of the new Act)

Relevant Legislation

Vagrants Gaming and Other Offences Act 1931:

“Part 2A – QUALITY OF COMMUNITY USE OF PUBLIC PLACES

7. Object of Pt 2A
This part has, as its object, ensuring, as far as practicable, members of the public may lawfully use and pass through public places without interference from unlawful acts of nuisance committed by others.
7AA Public nuisance
(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)…

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 Kris v Tramacchi

Details

AGLC: Kris v Tramacchi [2006] QDC 35
Case: [2006] QDC 35
Decision Date: 15 February 2006

CaseChat Overview and Summary

Kris brought an action against Tramacchi in the Supreme Court, seeking compensation for a public nuisance. The nub of the dispute centred around Tramacchi’s alleged use of obscene language and disorderly conduct in both private and public spaces, which Kris claimed interfered with the peaceful passage and enjoyment of the public place. The trial judge ruled in Kris's favour, awarding him damages for the public nuisance. Tramacchi appealed to the Full Court, arguing that the trial judge had erred in his determination of what constituted a public nuisance.

The court was required to decide whether the trial judge’s interpretation of the statutory definition of public nuisance was correct, particularly in relation to the requirement that the nuisance must be experienced by members of the public in a public place. The court also had to consider whether the police officers present during the incident could be considered members of the public for the purposes of the statutory definition.

The Full Court dismissed the appeal, affirming the trial judge's decision. The court held that the trial judge had correctly interpreted the statutory definition of public nuisance. It found that the officers were indeed members of the public, as they were present in their capacity as police officers enforcing the law, and that their presence in the public place was sufficient to satisfy the statutory requirement. The Full Court further held that Tramacchi’s conduct, which occurred both on private and public property, constituted a public nuisance as it interfered with the peaceful passage and enjoyment of the public place. The court found that the trial judge had properly considered all relevant factors in arriving at his decision and that the award of damages was appropriate.

Orders

Orders of the court

1. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

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:	Kris v Tramacchi [2006] QDC 035
PARTIES:	Charlotte Emily Kris (Appellant) v Constable David Tramacchi (Respondent)
FILE NO/S:	63/2005
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates’ Court
DELIVERED ON:	15 February 2006
DELIVERED AT:	Bundaberg
HEARING DATE:	13 February 2006
JUDGE:	Forde DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PUBLIC NUISANCE – “obscene language” – “offensive or disorderly way” – “interfering with or likely to interfere with peaceful passage or enjoyment of a public place” – what constitutes public nuisance – members of the police force as members of the public – where behaviour on both private and public property – whether members of public present in public place. Vagrants Gaming and Other Offences Act 1931, Pt2A, ss7, 7AA Acts Interpretation Act 1954, ss 14B(1)(a), 14B(1)(c), 14B(3) Police Powers and Responsibilities and Other Legislation Amendment Act (2003), ss 444 and 445 Criminal Code, s 340(b) Bryant v Stone DC 26 October 1990 Butterworth v Geddes [2005] QDC 333 Coleman v Power (2004) HCA 39 Del Vecchio v Crouchy [2002] QCA 9. Darney v Fisher DC 8 June 2005 Fox v Sawdy ex.p. Fox [1980] Qd R 378 Green v Ashton [2006] QDC 008 MAN v MAM [2003] QDC 398 at 6-7
COUNSEL:	Mr Simon Burgess for the appellant Mr Scott Collins for the respondent
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Services for the appellant/defendant Office of the Director of Public Prosecutions