Madsen v Queensland Police Service - [2006] QDC 505

No judgment structure available for this case.

[2006] QDC 505

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE McGILL SC
No D136 of 2006

HELENA MARIA MADSEN Appellant
and
QUEENSLAND POLICE SERVICE Respondent
TOWNSVILLE
..DATE 15/08/2006
JUDGMENT

1

15082006 T6/DD M/T TSVDC1/2006 (McGill DCJ)

HIS HONOUR: The appellant was tried in the Magistrates Court 1
at Ingham on the 16th of March 2006 on two counts. One count
alleged on the 8th of August 2005 at Ingham she had committed
a public nuisance offence, and one count alleged that on the

9th of August 2005 at Ingham she had obstructed a police 10
officer in the performance of the officer's duty.
At the conclusion of the trial the Magistrate found the
appellant guilty of both counts. In relation to the public 20
nuisance offence, she was fined $100. In relation to the
offence of obstructing police, she was fined $150. In each
case no conviction was recorded. She was given in each case
six months to pay the fine; in default of payment, two days'
imprisonment. 30
On the 5th of April 2006, she filed a notice of appeal to this
Court, apparently against conviction and sentence, although
the notice of appeal refers only to the public nuisance 40
offence. The appellant filed with the notice of appeal a
document which is not in the usual form for an outline of
argument, but which, I take it, sets out some arguments in
relation to the matter. It is alleged there was no evidence
50
of public nuisance produced, no witnesses for the female
officer from Centrelink was produced. It further goes on to
allege that there was discrimination against the appellant
under Federal legislation.

JUDGMENT

2 60

15082006 T6/DD M/T TSVDC1/2006 (McGill DCJ)

There were various other matters contained in the document 1
which do not appear to me to touch on the matters in issue in
the appeal.

Also filed by the appellant was, in effect, a reference from a 10
Mr Cavanagh, which appears to be really in the nature of fresh
evidence and it does not appear that this reference can be
brought within the fresh evidence rules.
20
The Magistrate at the conclusion of the trial noted that at
the trial he had heard the evidence of two police officers and
the evidence of a witness who was working in the Centrelink
office at Ingham. He records that that witness had given
evidence that at about 9 a.m. on the 8th of August the 30
appellant had entered the front doors of the office. She gave
a Nazi style salute, came forward to the front counter where
the witness was and was at the front counter for about 20
minutes, in the course of which she spoke in a loud voice 40
about various matters, including some of which were in a
vulgar nature and referred to her being raped, her daughter
having been raped and gave a reference to oral sex. There was
then a further Nazi style salute, or perhaps two Nazi style
50
salutes, and the police were called.

JUDGMENT

3 60

15082006 T6/DD M/T TSVDC1/2006 (McGill DCJ)

The police did not give evidence specifically of having seen 1
anything at the Centrelink office, but their evidence was
directed to the charge of obstructing police.

The Magistrate found, in relation to the public nuisance 10
charge, that the appellant on entering the building performed
the Nazi salute on three occasions while she was in the
building, and that spoke in a loud voice so that everyone
could hear sensitive matters which the witness from Centrelink 20
had referred to as being offensive or vulgar.
He also accepted that the charge of obstructing police was
proved on the basis that the appellant had failed to provide
some particulars requested from her by the police. This was 30
in the course of a conversation with the appellant which had
been tape-recorded. In those circumstances, she was found
guilty of that charge as well.
40
The offence of committing a public nuisance that the appellant
was charged with comes under section 6 of the Summary Offences
Act 2005. Relevantly, a person commits a public nuisance if
the person behaves in a disorderly way or an offensive way or
50
a threatening way or a violent way. It was not suggested that
the appellant's behaviour was threatening or violent, but it
was suggested that it was disorderly or offensive. In

JUDGMENT

4 60

15082006 T6/DD M/T TSVDC1/2006 (McGill DCJ)

relation to that, it was necessary to have regard to the whole 1
of the behaviour of the appellant in the Centrelink office.
The Magistrate noted, correctly, that there were two limbs to

the section. The first involved behaviour in a disorderly way 10
or an offensive way, relevantly, and the second required 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. Given that the relevant public place 20
was the interior of the Centrelink office, I think that the
relevant part of that second limb is enjoyment of a public
place by a member of the public.
There was evidence from the Centrelink officer that there were 30
a number of other people waiting to be attended in the
Centrelink office during the relevant time and that there were
other Centrelink officers present in the office at the
relevant time. All of these are members of the public for the 40
purposes of the section and it was relevant for the Magistrate
to take them into account and it appears the Magistrate did
take them into account in assessing whether the second limb
had been satisfied.
50
The Magistrate found that the behaviour of the appellant
involved behaviour in an offensive manner. The Magistrate had
the benefit of a decision of Senior Judge Skoien in Ashton v.

JUDGMENT

5 60

15082006 T6/DD M/T TSVDC1/2006 (McGill DCJ)

Green (2006) QDC 8, where there was some discussion in 1
relation to an analogous provision which then appeared in
section 7AA of the Vagrants Gaming and Other Offences Act
1931. I would respectfully agree with his Honour's analysis

and it is in my opinion consistent with the approach adopted 10
by the Magistrate in the present case.
There is nothing in the Magistrate's reasons to suggest that
there was any error of law committed in the application of the 20
provisions of section 6 by the Magistrate on that occasion,
nor has any error of law been identified by the appellant in
the appellant's submissions. I should say that there was a
finding that, in effect, the enjoyment of the public place by
the other customers would have been interfered with by the 30
appellant and on that basis he found her guilty of the
offence.
In my opinion, the conduct alleged was conduct which was 40
capable of falling within section 6 of the Summary Offences
Act. It was found in the particular circumstances of this
matter to have fallen within that provision by the Magistrate.
There is nothing in the Magistrate's reasons to suggest any
50
error of law.
The appellant in her oral submissions today was unable to
identify any error of law in the approach of the Magistrate,

JUDGMENT

6 60

15082006 T6/DD M/T TSVDC1/2006 (McGill DCJ)

or at least did not do so. Indeed, it seemed to me, that her 1
oral submissions did not at any point touch on the particular
issues which it was relevant for the Magistrate to consider
for the purposes of the hearing, or the relevant issues for me

to consider for the purposes of the appeal. 10
The Magistrate noted that although the appellant had given
evidence before him, her evidence there did not touch on the
matters which were the subject of the charges before him. The 20
Magistrate had evidence of what happened at the Centrelink
office from the witness who worked there and the fact that
there were not other witnesses was really of no consequence.
That evidence was available to be accepted and the Magistrate
was entitled to act on that evidence. 30
In the circumstances, there was evidence available to make out
the charge and the Magistrate did not, it seems to me, commit
any error of law in concluding that the appellant was guilty 40
of the offence. The penalty imposed was a moderate one and a
long time has been allowed to pay the penalty. Indeed, the
same applies to both offences. Nothing has been said to
indicate that the penalty would be excessive or that there was
50
any error of law committed in fixing the penalty. There is
therefore no basis upon which I could interfere with the
decision of the Magistrate and the appeal is dismissed.

-----

JUDGMENT

7 60

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Madsen v Queensland Police Service [2006] QDC 505

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HELENA MARIA MADSEN	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent
TOWNSVILLE ..DATE 15/08/2006
JUDGMENT

HIS HONOUR: The appellant was tried in the Magistrates Court	1
at Ingham on the 16th of March 2006 on two counts. One count
alleged on the 8th of August 2005 at Ingham she had committed
a public nuisance offence, and one count alleged that on the
9th of August 2005 at Ingham she had obstructed a police	10
officer in the performance of the officer's duty.
At the conclusion of the trial the Magistrate found the
appellant guilty of both counts. In relation to the public	20
nuisance offence, she was fined $100. In relation to the
offence of obstructing police, she was fined $150. In each
case no conviction was recorded. She was given in each case
six months to pay the fine; in default of payment, two days'
imprisonment.	30
On the 5th of April 2006, she filed a notice of appeal to this
Court, apparently against conviction and sentence, although
the notice of appeal refers only to the public nuisance	40
offence. The appellant filed with the notice of appeal a
document which is not in the usual form for an outline of
argument, but which, I take it, sets out some arguments in
relation to the matter. It is alleged there was no evidence
50
of public nuisance produced, no witnesses for the female officer from Centrelink was produced. It further goes on to
allege that there was discrimination against the appellant
under Federal legislation.

There were various other matters contained in the document	1
which do not appear to me to touch on the matters in issue in
the appeal.
Also filed by the appellant was, in effect, a reference from a	10
Mr Cavanagh, which appears to be really in the nature of fresh
evidence and it does not appear that this reference can be
brought within the fresh evidence rules.
20
The Magistrate at the conclusion of the trial noted that at
the trial he had heard the evidence of two police officers and
the evidence of a witness who was working in the Centrelink
office at Ingham. He records that that witness had given
evidence that at about 9 a.m. on the 8th of August the	30
appellant had entered the front doors of the office. She gave
a Nazi style salute, came forward to the front counter where
the witness was and was at the front counter for about 20
minutes, in the course of which she spoke in a loud voice	40
about various matters, including some of which were in a
vulgar nature and referred to her being raped, her daughter
having been raped and gave a reference to oral sex. There was
then a further Nazi style salute, or perhaps two Nazi style
50
salutes, and the police were called.

The police did not give evidence specifically of having seen	1
anything at the Centrelink office, but their evidence was
directed to the charge of obstructing police.
The Magistrate found, in relation to the public nuisance	10
charge, that the appellant on entering the building performed
the Nazi salute on three occasions while she was in the
building, and that spoke in a loud voice so that everyone
could hear sensitive matters which the witness from Centrelink	20
had referred to as being offensive or vulgar.
He also accepted that the charge of obstructing police was
proved on the basis that the appellant had failed to provide
some particulars requested from her by the police. This was	30
in the course of a conversation with the appellant which had
been tape-recorded. In those circumstances, she was found
guilty of that charge as well.
40
The offence of committing a public nuisance that the appellant
was charged with comes under section 6 of the Summary Offences
Act 2005. Relevantly, a person commits a public nuisance if
the person behaves in a disorderly way or an offensive way or
50
a threatening way or a violent way. It was not suggested that the appellant's behaviour was threatening or violent, but it
was suggested that it was disorderly or offensive. In

relation to that, it was necessary to have regard to the whole	1
of the behaviour of the appellant in the Centrelink office.
The Magistrate noted, correctly, that there were two limbs to
the section. The first involved behaviour in a disorderly way	10
or an offensive way, relevantly, and the second required 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. Given that the relevant public place	20
was the interior of the Centrelink office, I think that the
relevant part of that second limb is enjoyment of a public
place by a member of the public.
There was evidence from the Centrelink officer that there were	30
a number of other people waiting to be attended in the
Centrelink office during the relevant time and that there were
other Centrelink officers present in the office at the
relevant time. All of these are members of the public for the	40
purposes of the section and it was relevant for the Magistrate
to take them into account and it appears the Magistrate did
take them into account in assessing whether the second limb
had been satisfied.
50
The Magistrate found that the behaviour of the appellant
involved behaviour in an offensive manner. The Magistrate had
the benefit of a decision of Senior Judge Skoien in Ashton v.

Green (2006) QDC 8, where there was some discussion in	1
relation to an analogous provision which then appeared in
section 7AA of the Vagrants Gaming and Other Offences Act
1931. I would respectfully agree with his Honour's analysis
and it is in my opinion consistent with the approach adopted	10
by the Magistrate in the present case.
There is nothing in the Magistrate's reasons to suggest that
there was any error of law committed in the application of the	20
provisions of section 6 by the Magistrate on that occasion,
nor has any error of law been identified by the appellant in
the appellant's submissions. I should say that there was a
finding that, in effect, the enjoyment of the public place by
the other customers would have been interfered with by the	30
appellant and on that basis he found her guilty of the
offence.
In my opinion, the conduct alleged was conduct which was	40
capable of falling within section 6 of the Summary Offences
Act. It was found in the particular circumstances of this
matter to have fallen within that provision by the Magistrate.
There is nothing in the Magistrate's reasons to suggest any
50
error of law.
The appellant in her oral submissions today was unable to
identify any error of law in the approach of the Magistrate,

or at least did not do so. Indeed, it seemed to me, that her	1
oral submissions did not at any point touch on the particular
issues which it was relevant for the Magistrate to consider
for the purposes of the hearing, or the relevant issues for me
to consider for the purposes of the appeal.	10
The Magistrate noted that although the appellant had given
evidence before him, her evidence there did not touch on the
matters which were the subject of the charges before him. The	20
Magistrate had evidence of what happened at the Centrelink
office from the witness who worked there and the fact that
there were not other witnesses was really of no consequence.
That evidence was available to be accepted and the Magistrate
was entitled to act on that evidence.	30
In the circumstances, there was evidence available to make out
the charge and the Magistrate did not, it seems to me, commit
any error of law in concluding that the appellant was guilty	40
of the offence. The penalty imposed was a moderate one and a
long time has been allowed to pay the penalty. Indeed, the
same applies to both offences. Nothing has been said to
indicate that the penalty would be excessive or that there was
50
any error of law committed in fixing the penalty. There is therefore no basis upon which I could interfere with the
decision of the Magistrate and the appeal is dismissed.