Nilsson v McDonald
[2009] TASSC 1
•16 January 2009
[2009] TASSC 1
CITATION: Nilsson v McDonald [2009] TASSC 1
PARTIES: NILSSON, Sigrid
v
McDONALD, SCOTT (SERGEANT)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 700/2008
DELIVERED ON: 16 January 2009
DELIVERED AT: Hobart
HEARING DATE: 5 December 2008
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Application for hearing de novo - Circumstances in which it is appropriate to order hearing de novo.
Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Offence pursuant to the Justices Act 1959, s15B(2) – Matters to be proved.
Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Offence pursuant to the Justices Act 1959, s15B(2) – What constitutes a breach of the peace.
Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Offence pursuant to the Justices Act 1959, s15B(2) – What is a public place.
Police Offences Act 1935 (Tas), ss3, 15B.
Justices Act 1959 (Tas), ss30, 31, 107, 110, 111.
Acts Interpretation Act1931 (Tas), ss4, 46.
Sentencing Act 1997 (Tas), s7.
Dilworth v Commissioner of Stamps [1899] AC 99; YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395;
Stewart v Fletcher, unreported, 2 August 1988; McIvor v Garlick [1972] VR 129; R v Howell [1982] 1 QB 416; Innes v Weate (1984) 12 A Crim R 45; Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29, referred to.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: K Brown
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 1
Number of paragraphs: 54
Serial No 1/2009
File No LCA 700/2008
SIGRID NILSSON v SERGEANT SCOTT McDONALD
REASONS FOR JUDGMENT TENNENT J
16 January 2009
The applicant, Sigrid Nilsson, was found guilty by a magistrate of failing to obey the direction of a police officer, contrary to the Police Offences Act 1935 ("the Act"), s15B(2). The learned magistrate did not record a conviction but disposed of the matter by way of an undertaking and adjournment pursuant to the Sentencing Act 1997, s7(f). The applicant has sought a review of the decision of the learned magistrate. The grounds of review, as amended at the hearing, are in the following terms:
"1AHis Honour erred in failing to address the issue whether the alleged conduct of the defendant occurred in a public place or, alternatively, erred in finding that the alleged conduct of the defendant occurred in a public place;
1His Honour erred in not dismissing the original complaint under s 31(2)(b) of the Justices Act1959 because the original complaint was defective in failing to specify the offence that the defendant had committed or was likely to commit and this caused prejudice to the defendant.
3His Honour erred in not dismissing the original complaint under s 31(2)(b) of the Justices Act1959 on the grounds that there would be no prejudice to the defendant if the complaint was amended to include an additional ground under s15B(1)(d) of the Police Offences Act1935 - that is, that the defendant had committed or was likely to commit a breach of the peace;
4His Honour erred in finding on the admissible evidence that the defendant's alleged conduct on 15 June 2007 at the Royal Hobart Hospital fell within the legal definition of a breach of the peace;
6His Honour erred in finding, without sufficient basis in the admissible evidence, that Constable Pajak:
a believed that the defendant had committed a breach of the peace; and
b had reasonable grounds for holding such a belief.
7 His Honour erred in:
a imposing an inappropriate type of sentence on the defendant - incorporating a 12 month good behaviour period - without due regard for the fact that only a minor monetary penalty was mandated by the enactment itself relating specifically to the offence; and
b imposing, in sentencing, a good behaviour period out of proportion to the circumstances and seriousness of the offence and which failed to take into account the fact that the defendant had already been bound by a conditional bail period for 14 months during which the defendant was required to be, and was, of good behaviour."
The applicant also applied, pursuant to the Justices Act 1959, s111, for an order that the complaint, to which her notice of review related, be heard de novo by this Court. This application was made principally because the applicant asserted, in effect, that her counsel had conducted the hearing before the magistrate in an incompetent fashion, such that a number of documents were not tendered before the learned magistrate and a number of matters were not raised. Had they been so, the learned magistrate would have reached a different conclusion. Ideally, the application for a hearing de novo should be heard and disposed of prior to the commencement of the hearing of any review. The application in this case was listed for hearing at the same time as the review. To avoid the need for potentially two separate hearings, it was agreed that the documents upon which the applicant ultimately wished to rely would be taken in de bene esse. The application for a hearing de novo would be considered in the light of those documents. Were the application unsuccessful, the review would be determined on the basis of the submissions and material originally before the learned magistrate. On the other hand, if the application for a hearing de novo was successful, the review would need to be adjourned.
The documents upon which the applicant wished to rely were the following:
(a) Proof of evidence of Constable Ingrid Pajak.
(b)Facts for the prosecutor prepared by Constable Pajak.
(c)Copy of pages from the notebook of Constable Pajak containing entries relating to the applicant.
(d)Transcript of exchange involving the applicant, a custody sergeant and the arresting officer in the police charge room on 15 June 2007.
(e)Copy second reading speech of Minister David Llewellyn and fact sheet accompanying it relating to the introduction into Parliament of s15B in 2001.
The Act, s15B, provides as follows:
"(1) A police officer may direct a person in a public place to leave that place and not return for a specified period of not less than 4 hours if the police officer believes on reasonable grounds that the person –
(a) has committed or is likely to commit an offence; or
(b) is obstructing or is likely to obstruct the movement of pedestrians or vehicles; or
(c) is endangering or likely to endanger the safety of any other person; or
(d) has committed or is likely to commit a breach of the peace.
(2) A person must comply with a direction under subsection (1).
Penalty: Fine not exceeding 2 penalty units."
The complaint in respect of the applicant identified the charge laid against her, namely, "Fail to comply with a direction of a police officer". It also identified that charge as being a breach of "Section 15B(2) Police Offences Act 1935". The particulars of the charge were amended during the course of the hearing. The particulars (with the words added by amendment at the hearing underlined) were:
"You are charged with on the 15th June, 2007 at the Royal Hobart Hospital a public place at Hobart in Tasmania having been directed under the provisions of subsection 1, to leave that place and not return for a specified period of not less than 4 hours, by Constable PAJAK a police officer who had reasonable grounds for believing you had committed or was likely to commit an offence, and/or has committed or is likely to commit a breach of the peace and you unlawfully failed to comply with that direction."
On 15 June 2007, the applicant's mother was a patient at the hospital. There was an incident there on 14 June 2007, involving the applicant and hospital staff. Police were called and the applicant was ultimately arrested and charged with disorderly conduct. The applicant was removed from the hospital and taken to the police station for the purpose of being charged and was then bailed shortly after. She was bailed on condition that she not enter the neurological or neurosurgical wards at the hospital until 9am on 15 June unless requested to do so by hospital staff. The applicant in fact returned to the hospital at about 10.30am on 15 June. There was nothing to suggest that she was not quite lawfully able to do that. The applicant went to the neurosurgical ward where her mother was. She began talking to her mother. Within a few minutes, a Mr Michael Weeding, a hospital staff member, entered the room where the applicant and her mother were. He asked the applicant to step outside to talk about her signing a visitation agreement.
What precisely happened between that point and the applicant's later arrest and charging was in dispute. The applicant maintains that her behaviour could not have provided any police officer with the belief required for the purpose of a direction under s15B, and that in fact the police officers concerned were untruthful about what occurred, either deliberately, or because they made things up to cover a lack of memory. In any event, even if the police officers' evidence were accepted, then there were aspects of the law, simply not addressed at the hearing, which should have resulted in a dismissal of the charge.
Hearing de novo
The Justices Act, s111, provides that a person who has filed a notice to review may apply for an order that the complaint to which the notice relates be heard de novo and in this Court. Section 111(4) and (5) provide:
"(4) An order shall not be made under subsection (1) unless the court is satisfied that, having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo.
(5) Without limiting the generality of the provisions of subsection (4), the court may make an order under subsection (1), if –
(a) there does not exist, or it is not practicable to bring into existence, any sufficient account of that part of the proceedings to which any ground set out in the notice to review relates;
(b) at the hearing of the complaint the applicant was not represented by counsel and evidence available at that time amounting to a substantial ground of defence was not then adduced; or
(c) the parties to the notice to review consent to the making of an order."
None of the matters referred to in subs(5) are relevant in this particular case. I am, in the circumstances, precluded from ordering there be a hearing de novo unless I am satisfied that the interests of justice require it, having regard to all the circumstances of the case. The onus of satisfying me as to that falls on the applicant.
As I have already indicated, the applicant has applied for a hearing de novo principally because she seeks to rely on the documents identified in par3. She submitted that they should have been tendered during the course of the hearing before the learned magistrate. There is no suggestion that any of the documents were not then available. There is no suggestion that the applicant's counsel sought to tender them and was not permitted to do so. The only reason advanced for the fact the documents were not tendered is what the applicant says was the incompetence of her counsel.
As to the first three documents, the applicant submitted that they were relevant and, had they been admitted, they would have shown that the two police officers who gave evidence were not telling the truth. As to the fourth document, it was submitted that it also supported a contention that the officers were not telling the truth. Further, it demonstrated that the police officers were acting beyond their powers. As to the fifth document, it was directed to an argument mounted by the applicant before this Court, but not raised before the learned magistrate, to the effect that the hospital premises were not a public place and, as a consequence, not a place where police officers could give a direction pursuant to s15B.
While the first three documents are all ones which might routinely be made available to counsel for a defendant during the pre-hearing discovery process, and, as such, be available for the purpose of structuring a cross-examination, it would be unusual in my experience to see them tendered during a hearing. They might, however, be tendered if, for example, it was being suggested to a witness that he or she had made a prior inconsistent statement and the document was being put forward as that statement. There may at times be a forensic decision taken not to tender such a document if it contains something adverse to a defendant. It is not possible to tell from the transcript of the proceedings before the learned magistrate whether this might have been the case. If however the tender of the documents would have achieved no useful purpose given the conduct of the proceedings generally, it could not be said that it is in the interests of justice to order a hearing de novo to allow them to be tendered.
The starting point for a consideration of whether the documents sought to be tendered would, had they been tendered, have made a significant difference to the outcome of the proceedings is the transcript of the proceedings as they were conducted. The first four documents all relate to Constable Pajak. She wrote the notes in her notebook, she prepared the facts for the prosecutor, she prepared her proof of evidence, and she is the person who features in the transcript of what occurred in the charge room. She was extensively cross-examined by counsel for the applicant before the learned magistrate. The cross-examination dealt with why she attended at the hospital, her interaction with the applicant at the hospital, the content of the discussions with the applicant at the hospital, and the content of the direction given to the applicant at the hospital. During the course of that cross-examination, counsel for the applicant put a number of propositions to the officer which indicated that her instructions about events were different from what was being described by the officer. An examination of the documents sought to be relied upon, in light of the evidence that Constable Pajak gave before the learned magistrate, does not demonstrate any glaring inconsistencies or anything which would suggest a prior inconsistent statement. Quite clearly, there was little information in Constable Pajak's notes. There was nothing in the notes, however, which was inconsistent with her evidence. The same can be said of the material contained in the other documents. There is nothing in any of the material which, had it been admitted before the learned magistrate, is likely to have affected the outcome of the proceedings.
As to the fifth document, the second reading speech and associated fact sheet, that is not really a document which required tender in any event. They could have been handed up to the learned magistrate during the course of submissions, had there, at the time, been an argument raised as to interpretation of the legislation.
I am unable to be satisfied in all the circumstances that it is in the interests of justice that there be an order permitting a hearing de novo, and the application in respect of that order is therefore dismissed.
Grounds of review – Ground 1A
The first ground of review raises an issue which was not raised at the hearing before the learned magistrate. There has been no objection taken to it being dealt with by this Court. What underpins it is an argument by the applicant that the hospital premises are not a public place within the meaning of the Act, s15B, and that, as a consequence, a police officer has no power to give a direction under the section at those premises. The ground asserts that the learned magistrate erred in failing to address the issue. It is reasonable to assume, from the manner in which the hearing was conducted before the learned magistrate, that it was accepted by all parties that the premises were a public place. That they might not be, was simply not an issue that anybody sought to agitate and quite understandably the magistrate did not address the issue specifically in his reasons. While counsel for the respondent did not address the wording of the ground of review, the matter was argued on the basis that this ground was a challenge to the learned magistrate's implicit finding that the hospital premises were a public place.
The term "public place" is defined in the interpretation section of the Act. The entirety of it is relevant to the argument mounted by the applicant, and, in the circumstances, needs to be set out in full. It reads as follows:
"'public place' includes –
any park, regard, reserve, or other place of public recreation or resort;
any rail infrastructure, railway or all rolling stock …;
any public wharf, pier or jetty;
any passenger vessel plying for hire;
any vehicle plying for hire;
any church, chapel, or the building opened for the purpose of Divine service;
any public hall, theatre, or room in which any public entertainment or meeting is being held or performed or is taking place;
any market;
any auction room, or mart, or place open for the purpose of a sale by auction;
any premises specified in the liquor licence or liquor permit ... that are open for the sale of liquor;
any licensed billiard-room;
any race course, cricket ground, foot ball, show, or regatta ground, or other such place to which the public have access free or on payment of any gate-money; and includes any portion of such place which is within view of the public;
any open yard, place, allotment, or urinal, closet, lavatory, all of the convenience to which the public have access;
any police office or police station, or any court-house or court of petty sessions, or any yard or enclosure used therewith respectively, to which the public have access;
any street as herein defined, notwithstanding that the same may be formed on private property;
any school building or the land or premises used in connection therewith;
any public cemetery;
any banking house, warehouse, shop, office, or similar place while open for the transaction of business."
A further definition of the term "public place" appears in the Acts Interpretation Act 1931 ("the AI Act"), s46. It is there defined to mean any place to which, at the relevant time, the public have access, whether on payment of money for admission thereto or otherwise. As to whether this definition applies to the Act, regard needs to be had to the AI Act, s4(1), which provides:
"4 — (1) Except where otherwise expressly provided, the provisions of this Act shall be applied in the interpretation and construction of every Act whenever passed (including this Act) and of all regulations made under any Act, except in so far as –
(a) any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act or regulation to be interpreted; or, in case of a regulation, with the true intent and object of the Act under which such regulation purports to have been made;
(b) the interpretation which any provision of this Act would give to anything contained in such particular Act or regulation is inconsistent with the context thereof or with any definition or interpretation contained in such particular Act or regulation or in the Act under which such regulation is made."
The definition of the term "public place" in the Act obviously does not include any reference to a hospital. The applicant submitted, firstly, that the definition contained in the AI Act, s46, did not apply to the Act. Secondly, she submitted that the list of places appearing in the definition of "public place" in the Act was an exhaustive list and, since it did not include any reference to a hospital, a hospital was not a public place. Thirdly, the applicant submitted that, on a proper reading of the Act, s15B, a police officer had no power to give a direction to a person under that section unless the person was, at the time the direction was given, in a public place, the direction required the person to leave that public place, and the conduct which gave rise to the direction occurred in that public place. Since any behaviour of the applicant to which the police had had regard occurred on hospital premises and those premises were not a public place, the police officer had no power to give the direction that she did.
Dealing with the first submission, the applicant submitted that the definition of "public place" in the AI Act could not apply to offences under the Act because it was inconsistent with the true intent and object of the Act. In support of this contention, the applicant, in the absence of anything on the face of the Act which would indicate the true intent and object of it which might be of assistance to her argument, made reference to the second reading speech of the relevant Minister and the fact sheet prepared at the time of the amendments to the Act which saw s15B introduced. In her written submissions, the applicant quoted extensively from that second reading speech and fact sheet. With respect, having read both of those documents, there is nothing in either which would support the contention of the applicant.
The applicant also contended that, in the alternative, the application of the definition contained in the AI Act would give an interpretation to the Act, s15B, which was inconsistent with its context. This contention was also put forward by reference to the second reading speech and related material, the argument being that it was clear that the legislative amendments were designed to apply specifically to such obvious public open places as roads, streets, the central business district, public beaches and Salamanca Place where people congregated. While it is accepted that those places were referred to in the Minister's material, they were clearly referred to by way of examples and were not listed as an exhaustive indication of those places to which the legislation would apply. Further, the applicant's submissions appeared to suggest that the legislation was designed to deal with groups, whereas the section clearly refers to the capacity of a police officer to give a direction to a person. Again, there is nothing in the material relied on which would support the contention of the applicant.
The only basis upon which the applicant's contention that the AI Act definition does not apply could succeed is if her second argument, to the effect that the definition of "public place" in the Act contains an exhaustive list of those places which are to be considered public places for the purpose of the Act, were to succeed. The applicant submitted that all of the places listed in the definition were places that one would ordinarily imagine to be public places. The word "include" did not, she submitted, extend the meaning of the phrase beyond its usually accepted meaning. All it did was describe places which would ordinarily be categorised as public places. She further submitted that this view was consistent with the approach to interpreting legislation that, had Parliament intended a hospital to be a public place, it could and would have included a reference to a hospital in the definition. The applicant referred to passages in two decisions where the meaning of the word "includes" was considered.
In Dilworth v Commissioner of Stamps [1899] AC 99, the Privy Council dealt with the term in the context of determining whether the words "charitable purposes includes" were meant to provide an exhaustive list of such purposes for the purpose of the particular legislation. Lord Watson said at 105:
"The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include,' and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions."
In that particular case, the court did not determine the issue but assumed that, in the circumstances of that particular case, the word was meant to introduce an exhaustive definition.
The second case to which the applicant referred was YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395. In that case, the High Court dealt with the question of whether a definition of the term "security", where in the relevant legislation the term "security includes" was used, was an exhaustive definition or not. Kitto J said at 402:
"The well-known statement of Lord Watson in Dilworth v Commissioner of Stamps should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word 'includes'. Strictly speaking, that word cannot be equivalent to 'means and includes'. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if 'means' had been the verb instead of 'includes'. The question whether a particular provision is exclusive although 'includes' is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole."
In that particular case the court determined on the facts of that case that the definition was an exhaustive definition.
The list of places included in the definition of "public place" in the Act is lengthy. That list was present in the Act prior to the introduction of the present s15B. It was not altered to any relevant degree after the introduction of the section. Its ambit was not therefore directed in any way specifically to the powers given to police under the new section. Had it been so, the applicant's argument about its interpretation might have had some merit. However, the broad nature of the legislation would suggest that the legislature was attempting to enlarge, and not confine, what might be determined to be a public place for the purpose of the Act generally. I am satisfied having regard to the context in which s15B appears that the term "includes" in the definition of "public place" in the Act was not intended to create an exhaustive list of places which were public places but was intended to enlarge that category.
In Stewart v Fletcher, an unreported decision of Neasey J, delivered 2 August 1988, his Honour dealt with a review of a magistrate's decision where the issue was whether a particular place was a public place for the purpose of the Act. His Honour accepted, without challenge, that the definition of public place in the AI Act was relevant, when considering whether a place was a public place for the purpose of the Act. In all the circumstances, I am of the view that the definition of what is a public place contained in the AI Act is to be considered when determining what is a public place for the purpose of the Act.
The applicant submitted that, even if that extended definition applied to the Act, the entirety of the premises which comprised the Royal Hobart Hospital could not possibly be characterised as a public place. She submitted that the hospital had both public and private domains, and that there were clearly areas of the hospital to which members of the public had no access, nor would be permitted access. The applicant referred, in support of this submission, to a decision of the Supreme Court of Victoria in McIvor v Garlick [1972] VR 129. In that case a person was charged with using indecent language in a public place. The relevant place was the foyer of the Mornington Bush Nursing Hospital and the time at which the offence was said to have occurred was 11.30 pm. The court there considered a definition of public place in virtually identical terms to that covered by the extended definition which I have found applies in the present case.
Newton J held that the foyer of the hospital was not a public place at the particular time at which the offence was said to have occurred. His Honour said at 133 - 134:
"In my opinion, a place will ordinarily be a 'public place' at common law or within paragraph (n) or paragraph (o) —
(1) If at the relevant time members of the public are lawfully entitled, invited or permitted to be there in their capacity as members of the public, whether or not subject to payment for admission or to other conditions, and irrespective of the number of persons in fact present at the relevant time. Examples are a male or female lavatory in a park or like place (R v Harris (1871), LR 1 CCR 282; Moloney v Whitwell, [1924] VLR 454; sub nom Maloney v Whitwell, 30 ALR 343; Inglis v Fish, supra); a railway station (Davidson v Darlington (1899), 24 VLR 667; 5 ALR (CN) 54; Turner v Mangan (1904), 29 VLR 789; 10 ALR 102); a railway carriage (Langrish v Archer (1882), 10 QBD 44; [1881-5] All ER Rep 913); an hotel bar during licensing hours (cf R v Mapstone, [1964] 1 WLR 439; [1963] 3 All ER 930); a shop during ordinary business hours (Ex parte Halliday (1893), 14 LR (NSW) (L) 421; Ward v Marsh, supra); an auction sale, church service or theatre performance (Sewell v Taylor (1859), 7 CBNS 160; 141 ER 776); and a racecourse enclosure for the paying public during a race meeting (Glynn v Simmonds, [1952] 2 All ER 47; Sawtell v Regan (1882), 3 LR (NSW) 362); some of these places are now within other parts of the definition of 'public place' in s 3, for example, paragraphs (b), (c), (g), (i), (k), (l) and (m), but they are nevertheless illustrations of the general proposition earlier stated. And compare proposition (b) in the judgment of Sholl, J, in Ward v Marsh, supra, at (VR) pp 36, 37.
(2) If the place is one to which significant numbers of members of the public in their capacity as such are in the habit of going, whether or not by legal right or authority, either at all hours or during hours which include the relevant time, and even if at the relevant time none or only a few persons are present. Examples are the privately owned marsh considered in R v Wellard (1884), 14 QBD 63; [1881-5] All ER Rep 1018, and the privately owned betting ground considered in Kitson v Ashe, [1899] 1 QB 425. See too proposition (a) in the judgment of Sholl, J, in Ward v Marsh, supra, at (VR) p 36.
(3) If at the relevant time a large number of persons are in fact there, whether or not by legal right or authority. One example is the 'pick up' bureau considered in McKinna v Connelly, [1918] VLR 641; 14 ALR 363. Another example is the Parliament grounds occupied by 200 to 300 demonstrators considered in Melser v Police, [1967] NZLR 437, especially at pp 438, 439 and 444. See, too, Ward v Marsh, supra, at (VR) pp 34 and 35. It may be that the capacity in which the persons were present would be relevant; if they had assembled in some special capacity only the place might not fall within this third category: for example a muster of 300 prisoners in a gaol courtyard. But this problem is not relevant to the present case and I shall not pursue it."
The applicant's submission was that the conduct, upon which Constable Pajak relied as grounding the belief needed for the purpose of the direction she gave, occurred in the applicant's mother's hospital room and that that room, by reference to the categories identified by Newton J in McIvor v Garlick, could not be a public place for the purpose of the Act. The applicant set out in her written submissions references to extracts from the evidence of Constable Pajak, Constable Haas and Mr Weeding. With respect, the extracts to which the applicant referred were somewhat selective.
Constable Pajak was the officer who gave a direction to the applicant. Her evidence as a whole indicates that the formal direction to leave the hospital was given in the foyer area of the hospital off Argyle Street. The direction was given at a time of day when it was visiting hours and members of the public were clearly entitled to enter the hospital through the foyer. There can be no doubt in my view that that area was a public place within the meaning of the Act. The officer said of the applicant that she was "very argumentative, belligerent, and shouting at the top of her voice talking over everyone else, um – that was very loud in the ward um, it was obviously a ward containing a lot of um very sick people, and that we weren't going to tolerate her er committing any other breaches of the peace, it wasn't appropriate".
The evidence of the constable was that her initial discussions with the applicant occurred in the applicant's mother's room in the hospital. The door to that room was open and the officer believed that the noise being made by the applicant would clearly have been able to be heard outside. She requested the applicant go with her to a nearby room, which was a relatives' room, so that she could have further discussions with the applicant. Mr Weeding in his evidence described that room as not being open to the public because there was a meeting in there. Clearly it can be inferred from the evidence that it was a room available for use by any members of the public, who were relatives of patients on the ward, while they were visiting. It can also be inferred that, because of the nature of the purpose to which the police officer was putting it on this particular day, had other members of the public wished to use it at the same time, they may have been prevented from doing so. That does not in my view exclude it in general terms from being a public place.
If the evidence of Constable Pajak is accepted, the behaviour of the applicant she described commenced in the applicant's mother's hospital room and continued in the relatives' room and was such that the applicant could be heard in other areas. While therefore the behaviour of the applicant may not have occurred in a public place (her mother's room), it clearly impacted upon, because of its proximity, areas which were, for example the corridor outside the room. This is a situation where parts of the hospital would be considered to be public places for the purpose of the legislation while other parts might not. However, in this case, the applicant's behaviour, if it did not occur in an area which could be designated a public place, did occur in circumstances where the behaviour impacted on public areas. Further, the direction by the police officer was given in a public place and directed the applicant not to return to that public place, that is those areas of the hospital which would constitute a public place.
The learned magistrate was in my view entitled, given the evidence before him and given no issue was raised by the applicant's counsel or indeed the prosecutor, to proceed on the basis that the areas of the Royal Hobart Hospital in which the applicant's behaviour occurred, or in which the impact of the applicant's behaviour was felt, were public places for the purpose of the Act. In my view he was correct in so doing. Ground 1A of the notice to review must therefore fail.
Ground 1
The applicant asserts by this ground that the complaint against her as originally drawn was defective in that it failed to specify the offence that she had committed or was likely to commit and that she was prejudiced by this. There was no suggestion by the applicant's counsel before the learned magistrate by reference to the Justices Act, s31(2)(b), that the complaint as originally drawn was defective. The applicant's assertion now, that it was, is, with respect, based on a misconception as to what was required in the complaint.
The offence with which the applicant was charged was failing to obey a direction of a police officer. The Justices Act, s30, provides that a complaint is sufficient if it contains such particulars as will give reasonable information of the nature of the matter complained of. The complaint identified the nature of the charge, the section said to have been breached, the date and place where the offence was said to have occurred, and that a direction had been given on the basis of a belief an offence had been or was likely to be committed. In my view, the fact that the complaint did not also identify the offence upon which the police officer's belief was based, did not render the complaint defective. In the circumstances s31(2)(b) was not relevant. This ground of review must fail.
Ground 3
At the conclusion of the evidence, the prosecutor applied to amend the particulars of the complaint to accord with the evidence which had been given. The application was opposed. The Justices Act,s31, provides:
"(1) An objection shall not be taken or allowed to a complaint in respect of —
(a)an alleged defect therein, in substance or in form; or
(b)a variance between it and the evidence in support thereof.
(2) Notwithstanding the provisions of subsection (1), where —
(a)a complaint fails to disclose an offence or matter of complaint; or
(b)the defendant appears to have been prejudiced by any defect or variance referred to in that subsection —
the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint.
(3) If it appears to the justices that the complaint —
(a)fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b)ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect —
the justices may amend the complaint upon such terms as may be just."
The learned magistrate permitted the amendment as sought by the prosecutor, expressing himself satisfied that there would be no prejudice to the applicant were the amendment allowed. The learned magistrate specifically queried counsel for the applicant in relation to the nature of any prejudice which might accrue to her client. His Honour pointed out that the evidence led at the hearing demonstrated very clearly that the police officers believed, rightly or wrongly, that there had either already been a breach of the peace or there was likely to be one, having regard to the applicant's behaviour as asserted by them. He also pointed out that the cross-examination by counsel had been directed to those issues. His Honour enquired what prejudice the applicant would suffer if, in particular, he permitted her to question witnesses further about any matters that she believed had not been covered already. While admittedly, counsel for the applicant was apparently taken by surprise by the application, she was unable to identify any particular prejudice which might flow to her client. In those circumstances his Honour permitted the amendment.
The applicant's written submissions again highlighted a misconception as to what a complaint needed to contain. It was not necessary for the complaint to identify the nature of the offence which might have been said to have been committed. The charge against the applicant was, both prior to and following the amendment, that of failing to obey the direction of a police officer. What was altered by the amendment was the addition of a basis upon which a police officer may have given that direction. The alteration was entirely consistent with the evidence, the applicant's counsel and the applicant had heard all the evidence, and the applicant's counsel had cross-examined in detail and at length in respect of the reasons the police officer gave for giving a direction to the applicant. There was no suggestion by the applicant's counsel that she could have or would have called other witnesses as to the nature of the applicant's conduct. In fact, that suggestion was only raised in submissions on the hearing of the review. The learned magistrate heard evidence from other witnesses present at the time of the incidents involving the applicant. There was no application from the applicant's counsel for an adjournment to enable her to present evidence from any other persons who might have been in the vicinity and, indeed, the applicant did not identify any specific witnesses who might have been able to give relevant and cogent evidence.
I am not satisfied the applicant was in any way prejudiced by the amendment permitted by the learned magistrate. I am satisfied the learned magistrate did not make an error in permitting the amendment and this ground of review should fail.
Grounds 4 and 6
These grounds are interrelated and will be dealt with together. Ground 4 of the review asserts that the learned magistrate made an error in finding that the applicant's conduct constituted a breach of the peace. With respect, he did not do so, nor was it incumbent upon him to do so. For the charge against the applicant to have been found proven, the prosecution needed to satisfy the learned magistrate that:
(a)the police officer had given the applicant a direction to leave a place and not return within a specified period;
(b) the place in which the direction was given was that public place;
(c) the direction required the applicant to leave that public place;
(d) the police officer believed on reasonable grounds:
(i) that the applicant had committed an offence;
(ii) that the applicant was likely to commit an offence;
(iii) that the applicant had committed a breach of the peace; or
(iv) that the applicant was likely to commit a breach of the peace.
The issue was not whether the learned magistrate could be satisfied beyond reasonable doubt that the applicant had committed a breach of the peace or the offence of trespass. The issue was whether, in the circumstances with which she was dealing at the time, Constable Pajak could be said to have had a belief on reasonable grounds that one of the situations in (d) above existed. It was not a requirement for a conviction for an offence under s15B, that the applicant must also be able to be convicted of another offence or have been found to have committed a breach of the peace.
The learned magistrate correctly identified that Constable Pajak was the person who gave the direction. He made the decision to deal with the breach of peace issue and to ignore the trespass matter. He said that he did not ignore it because it lacked merit, but it is not clear why he chose to do so. However, having made the decision to deal with the breach of the peace issue, he correctly identified the question he needed to answer, that is, did the officer reasonably think that there was likely to be a breach of the peace. He then went on to identify what constituted a breach of the peace before dealing with the conduct of the applicant to determine whether it might fall within the definition. He did so for the purpose of determining whether Constable Pajak's belief was based on reasonable grounds. He ultimately said:
"… I've come to the conclusion beyond all reasonable doubt that the police officer was – had reached a reasonable conclusion in er coming to the decision that there was – had been a breach of the peace, or er was likely to be a breach of the peace."
This ground of review challenges the definition of breach of the peace upon which the learned magistrate relied. His Honour said about what a breach of the peace was:
"Well breach of the peace, er, is basically – consists of acts that will reasonably produce alarm in the mind – in the minds of other people. Not necessarily alarm, in the sense of personal fear, but such alarm is causing them to believe that what is going to be done causes, or will cause, real disturbance to the community in the breaking up of the peace of the neighbourhood. In other words it's a pretty broad definition. I just simply rely on Stroud's Words and Phrases and Butterworths for that definition.
If I look at another definition er contained in Butterworths Australian Legal Dictionary, er – well 1997 version, breach of the peace:
Conduct that threatens to create civil unrest or disturbance, conduct that offends another person and it might result in an outbreak of violence, constitutes a breach of the peace.
I mean I don't think there's any argument as to that – those definitions adequately er set out the – what a breach of the peace er is."
The applicant submitted that the learned magistrate erred in applying a definition of breach of the peace which was at least partly incorrect because it was in conflict with the definition of that term contained in R v Howell [1982] 1 QB 416. In that case, the court was considering the extent of a police officer's power of arrest dependent on a belief that a breach of the peace was imminent. The court considered for that purpose just what constituted a breach of the peace. Watkins LJ said at 427:
"The statement in Halsbury is in parts, we think, in accurate because of its failure to relate all the kinds of behaviour there mentioned to violence. Furthermore, we think, the word 'disturbance' when used in isolation cannot constitute a breach of the peace.
We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant."
Cosgrove J said in Innes v Weate (1984) 12 A Crim R 45 at 52 that he accepted the above definition although he did say that it was not exhaustive. The applicant did not refer to any other Tasmanian authority in respect of this issue and counsel for the respondent did not refer to the issue at all. I have been unable to find any more recent case than Innes dealing with what might constitute an appropriate definition of the term "breach of the peace". In another English decision of Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29, another case involving the issue of a police officer's power to arrest where it was anticipated a breach of the peace might occur, Ward LJ considered the issue but only in the context of whether there could be said to be an imminent breach of the peace where a threat to damage property was conditional on something occurring. The court did not accept the argument that there could be no breach in those circumstances. However, for present purposes, the relevance of the decision is that violence or threatened violence of some description was clearly accepted as being an element of a breach of the peace.
While clearly the learned magistrate made no reference to either of the cases to which the applicant has now referred, neither counsel at the hearing referred him to them nor did either cavil with his definition. The applicant's submission appears to be based upon the fact that the learned magistrate did not quote the words from either of these cases and did not identify with any emphasis the reference to violence or anticipated violence in his definition. As a consequence she says the definition he relied on was wrong. However with respect, he did not have to use the words from either the English or Tasmanian cases referred to. The definition quoted was from a respected legal dictionary even though the transcript does not record it accurately: the word "it" should be "that". Clearly the definition contains the element that the conduct needs to be such as might result in violence and it must be inferred the learned magistrate was alert to that.
As I have said, the learned magistrate only needed to be satisfied, on the basis of the evidence, that Constable Pajak held a belief on reasonable grounds that the applicant either had committed, or was likely to commit, a breach of the peace. By reference to the evidence to which he referred, he said that he was so satisfied. That evidence included that there had been a dispute going on for several days or several weeks involving the hospital and the applicant. He said the police were aware that the applicant had been arrested on 14 June 2007. He said the police had observed the applicant to be agitated, talking and yelling loudly and refusing to accept a direction from hospital staff that she should leave. The learned magistrate made reference to the tape of telephone calls made by the applicant to the 000 emergency number. He found that the very act of the applicant in ringing that number in the circumstances of this case was not the act of a normal person. Calling the emergency 000 number was clearly out of proportion to the prevailing circumstances. The learned magistrate also found that the applicant was not particularly calm or collected during the discussion with the officer during those calls. He said she was obviously agitated and would not accept what the police officer was telling her, that is to get off the line, and that she continued to argue with the police officer. He went on to say that the manner of her talking to the officer on the emergency number added weight to the evidence of Constable Pajak.
I should say in relation to the 000 calls that, having listened to them, the applicant's behaviour during could not be characterised in the way the learned magistrate did so. The applicant sounded calm. She did not yell or shout and she did not talk over the officer she spoke to. She was somewhat understandably reluctant to leave the ward as requested because she was concerned she might not be allowed back. Those emergency calls could not in any way have been used to corroborate Constable Pajak's description of the applicant's behaviour, as they were.
The learned magistrate also relied on what he described as the applicant's own evidence to the effect that she had called the hospital legal officer an arrogant bitch. There was no evidence before him as to the exchange between the applicant and Ms Dewhurst, who was not called as a witness. There was no evidence to suggest there was any threat of violence or any indication at all that the use of those words might have led to violence.
There was no evidence otherwise that the applicant used or threatened violence. There was no evidence from either police officer or indeed anyone else that they were afraid that the applicant would become violent unless she was removed from the hospital. While she was, if the evidence is accepted, creating a noisy scene which may have been disturbing other patients and visitors in the area, the question remains whether Constable Pajak, by reference to that behaviour, could have formed the requisite belief.
It seems clear that Constable Pajak believed that the applicant's behaviour as she observed it amounted to a breach of the peace and that she was concerned that, if the applicant remained in the hospital, the behaviour would continue and be likely to constitute a breach of the peace. The issue for determination by the learned magistrate was never whether he could be satisfied beyond reasonable doubt that the applicant had committed a breach of the peace, but whether he could be satisfied beyond reasonable doubt that Constable Pajak believed on reasonable grounds that the applicant had committed a breach of the peace or was likely to commit one, or that the applicant had committed, or was likely to commit, an offence. A police officer acting in these circumstances is not obliged to ascertain with absolute certainty prior to giving a direction that, if a person to whom a direction was given was charged with an offence, every element of that offence would be able to be proved beyond reasonable doubt. The police officer is only obliged to form a belief on reasonable grounds as to a state of affairs. As long as that belief is a reasonable one it does not matter that it might subsequently be found to have been incorrect.
The learned magistrate accepted the evidence of the police officers where it was in conflict with that of the applicant as to the nature of her behaviour. He gave reasons for so doing and those findings are not challenged (they appear at 162 of the transcript). The nature of the applicant's behaviour as described by the officers when combined with what was known of the history between the applicant and the hospital staff could quite reasonably have left Constable Pajak with a belief that, if unchecked, the applicant's behaviour might escalate to a physical confrontation. That would be sufficient grounds for the direction she gave.
Grounds 4 and 6 should fail.
Ground 7
This ground was misconceived. The applicant had not had regard to the provisions of the Sentencing Act 1997, s7, and was unaware that the sentence imposed upon her pursuant to s7(f) was in fact what might be described as a lesser sentence than a conviction and fine. The applicant submitted that a fine was the more appropriate penalty. She did not however realise that, for there to be a fine, there would also need to be a conviction. The applicant also made reference to the fact that she had been on conditional bail for 14 months during which she had been required to be, and she said had been, of good behaviour. The first point to be made about that last submission was that the applicant had been bailed in respect of a matter other than that with which the learned magistrate was dealing. Secondly there was no evidence, apart from the contents of the bail document, to indicate the nature of the matter in respect of which the applicant had been bailed, nor any evidence as to whether or not there had been any breach of bail in the intervening time.
The penalty imposed by the learned magistrate was entirely appropriate for a person found guilty of a minor offence in circumstances where that person had no prior criminal history. It was also appropriate in my view having regard to the nature of the offending. The applicant did not pursue this ground with any vigour and in my view it must fail.
Conclusion
The applicant has been unsuccessful in respect of all grounds of review and her notice to review is dismissed.
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