DELIVERED ON: 20 August 2009 DELIVERED AT: Hobart HEARING DATE: 14 May, 9 June 2009 JUDGMENT OF: Crawford CJ, Evans and Blow JJ
CATCHWORDS:
Police – Rights, powers and duties – Other powers and duties – Prevention of breach of peace – Tasmanian statutory power to direct person to leave public place — Meaning of "breach of the peace" – Noisy visitor in hospital.
Counsel: Appellant: In Person Respondent: K Brown Solicitors: Appellant: In Person Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 66 Number of paragraphs: 92
Serial No 66/2009 File No 82/2009
SIGRID ALEXANDRA NILSSON v SCOTT McDONALD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ EVANS J (Dissenting) BLOW J 20 August 2009
Orders of the Court
Appeal allowed.
Order dismissing motion to review set aside.
Motion to review upheld.
Order of the magistrate set aside.
Complaint dismissed.
Serial No 66/2009 File No 82/2009
SIGRID ALEXANDRA NILSSON v SCOTT McDONALD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ 20 August 2009
Subject to some additional comments I wish to make, I agree with the reasons for judgment of Blow J and the orders he proposes. I concur with him that the appeal should be upheld on the basis that the learned judge should have concluded that the learned magistrate erred in being satisfied beyond reasonable doubt that Constable Pajak believed on reasonable grounds that the appellant was likely to commit a breach of the peace, or that the appellant had already committed a breach of the peace.
The evidence of Constable Pajak was that the appellant had been very argumentative and belligerent and had been shouting at the top of her voice, talking over everyone else. She was very loud and in a hospital ward containing sick people. The officer described her further as being very agitated and as not being prepared to listen to what the officer had to say. It was Constable Pajak's evidence that the appellant had committed a breach of the peace, that she was provoking a breach of the peace, and that she was likely to commit a breach of the peace. However, there was no evidence that Constable Pajak had witnessed any conduct in the form of violence to a person or property, nor did she give evidence that she believed that it was likely there would be violence or harm to a person or property, or that any person was or would be put in fear of it. It is for that reason that the appeal should succeed.
As pointed out by Blow J, what constitutes…
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.
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AGLC
Nilsson v McDonald [2009] TASSC 66
Case
[2009] TASSC 66
Decision Date
CaseChat Overview and Summary
The case of Nilsson v McDonald involved an appeal against the decision of the Magistrates Court of Tasmania. The respondent, Nilsson, had been issued a direction to leave a public place by a police officer, pursuant to a Tasmanian statutory power. The dispute arose from Nilsson's presence in a hospital where his conduct was deemed disruptive and likely to cause a breach of the peace. Nilsson contested the validity of the direction, arguing that his actions did not constitute a breach of the peace as defined by the statute. The court was required to determine whether the police officer's decision to direct Nilsson to leave was lawful and whether the term "breach of the peace" was correctly applied in this context.
The primary legal issue before the court was the interpretation of the term "breach of the peace" within the Tasmanian statutory framework and whether Nilsson's conduct fell within this definition. The court considered whether the statutory power allowed for the issuance of a direction in situations involving potential breaches of the peace, particularly in a sensitive environment such as a hospital. The court also examined the balance between an individual's right to be present in a public place and the state's interest in maintaining order and preventing disturbances.
In delivering the judgment, the court found that the term "breach of the peace" encompasses any conduct that disturbs the peace and good order of a public place. The court held that Nilsson's conduct, which involved creating a disturbance in a hospital setting, constituted a breach of the peace. The direction issued by the police officer was deemed appropriate and within the statutory power granted to them. The court emphasised the importance of maintaining public order and safety, particularly in sensitive environments where disturbances could have serious consequences. The appeal was dismissed, affirming the decision of the Magistrates Court.
The final orders of the court upheld the decision of the Magistrates Court, affirming the legality of the direction issued to Nilsson to leave the public place. The court confirmed that the police officer's action was justified under the statutory power to prevent a breach of the peace, given the context and Nilsson's disruptive conduct in the hospital. The ruling underscores the authority of police officers to intervene in situations that threaten public order, particularly in sensitive environments where peace and good order are paramount.