Lucas v Casson

[2008] QDC 163

[2008] QDC 163

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE FORDE

No 2721 of 2007

STEPHEN JOHN LUCAS	Appellant
and
JACQUELYN CASSON	Respondent
BRISBANE ..DATE 25/02/2008

ORDER
HIS HONOUR: This is an appeal against the decision of the

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Magistrate, Mr Nunan, who gave his reasons on the 27th of August 2007. The appellant, Mr Lucas, was charged on that occasion with committing a public nuisance which occurred on the 14th of June 2007.

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...

HIS HONOUR: This is the only offence with which I am dealing
today. The learned Magistrate on that occasion fined the

appellant $100 and was satisfied that there was a public	20
nuisance.
The facts were that on the day in question the appellant was sitting at Toombul and had been sitting there for some time. He says that he was minding his own business and staff became	30
concerned that he had been sitting there for too long and police and security were called.
It matters not at this point as to why he was sitting there
but when approached by police it seems that there was	40
conversation between the appellant and police and, as a result of that, the appellant was charged.
The decision of the Magistrate placed reliance on the evidence
of Constable Casson who it is said the appellant called "a	50

fucking bitch". This was denied by the appellant.
It becomes a question then of whether there was evidence upon 2 ORDER 60

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which the Magistrate could act in this case to convict, that
is to support the evidence of the complainant, Constable

Casson (see Bailey v. Coston CA261 of 1993).

The Magistrate said that he was impressed with her evidence,	10
that she did not know the appellant before this day, that she
had no pre-knowledge of him and, what is probably relevant
here, the Magistrate in his reasons in relation to the actual
offence did not make mention in any way of the mental
condition of the appellant.	20
As the Magistrate sits as both Judge and jury, he is required
to act upon the evidence and not irrelevancies and, in this
instance, at least on the written reasons as far as the
offence is concerned, as to be distinguished from the reasons	30
given when he punished the appellant, he did make no mention of the mental condition of the appellant.
In determining whether such words used amounted to public
nuisance, the Magistrate had regard to the decision of Green	40
v. Ashton where a person called a police officer "a fucking
cunt". This language has been, by virtue of the amendments to
the Vagrants, Gaming and Other Offences Act, section 7A, held
to be of an abusive nature to a police officer who can, for
all purposes, be regarded as a member of the public.	50

In the context of that day and the circumstances where there were many people around and the overall circumstances of this fracas, it could be said that such language, if used, amounted 3 ORDER 60

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to being abusive and therefore, as far as the Act is
concerned, a public nuisance. A person behaves in an
offensive way if a person uses offensive, obscene or indecent

language.

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The question is whether the Magistrate was entitled to accept the evidence of Constable Casson together with the security officer, Christopher Corby, in this case.

...	20
HIS HONOUR: Whether or not there were discrepancies as
pointed out by the appellant is not really to the point. The
question is whether the Magistrate was prepared to act upon
the basic thrust of the evidence and that is that language was	30
used towards Constable Casson.
The Magistrate appreciated the right of individuals to go and
sit at these shopping centres but was also satisfied on the
evidence that the words were used and that in the	40
circumstances of the case and the manner in which they were
stated amounted to an offence as charged. Where credibility
is an issue, and the Magistrate has made findings on credit,
an appellant cannot succeed unless the Magistrate has failed
to use the advantage of seeing the witnesses or has acted on	50
evidence which was inconsistent with facts which were
established by the evidence (see Devereaux v. The Australian
National Railways Commission [1992] - 177 CLR 472).

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In the present case there is nothing which presents before me
which would indicate that even though there may have been some

discrepancies in the evidence that the important evidence of the making of the statement and the conduct were accepted by the Magistrate. As such, on appeal, I cannot therefore allow	10
an appeal unless there is some evidence which would show that the Magistrate has failed to use the advantage he had of seeing and hearing the witnesses.
A Magistrate in these circumstances exercises a discretion in	20
determining whether an offence may have been proved or not
(see House v. The King [1936] 55 CLR 499 at 504). It must be
demonstrated that the Magistrate that the Magistrate acted
upon a wrong principle and allowed in extraneous or irrelevant
material in his reasoning.	30
I am not satisfied that in this particular case that that has occurred. Therefore the appeal is dismissed.
...	40

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