Osgood v Queensland Police Service
[2005] QDC 111
•13 May 2005
DISTRICT COURT OF QUEENSLAND
CITATION:
Osgood v Queensland Police Service [2005] QDC 111
PARTIES:
STEVEN EDWARD OSGOOD
(Appellant)
v
QUEENSLAND POLICE SERVICE
(Respondent)FILE NO/S:
11 of 2005
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Cairns
DELIVERED ON:
13 May 2005
DELIVERED AT:
Cairns
HEARING DATE:
13 April 2005
JUDGE:
Bradley DCJ
ORDER:
Appeal allowed. Appellant acquitted.
CATCHWORDS:
COUNSEL:
Self-represented appellant
Mr S. Carter for the respondent
SOLICITORS:
Office of Director of Public Prosecutions for the respondent
Facts
After being charged with an indictable offence involving a child, A, Mr Osgood was granted bail in relation to the charge on his own undertaking on 20 September 2003. It was a condition of his undertaking that Mr Osgood “Not to have any contact directly or indirectly with [A]”.
On the morning of 24 February 2004 Mr Osgood was seated in a small alcove outside Magistrates Court Room 6 on Level 2 of the Cairns Courthouse awaiting the continuation of a part-heard domestic violence hearing involving A’s mother, B as the aggrieved in a police application for a Protection Order against Mr Osgood.
Whilst Mr Osgood was thus seated B, accompanied by her daughter A, approached and also sat in the alcove directly across from Mr Osgood. There was no-one else in the alcove at the time. B asked Mr Osgood what time she would be required in court and Mr Osgood replied that she should wait until the prosecutor arrived and someone would show her in. Thereafter the police prosecutor arrived and Mr Osgood left the alcove and walked into the court room.
As a result of this incident Mr Osgood was charged with breaching the condition of his bail undertaking. He pleaded not guilty to that charge and after a hearing on 21 December 2004, he was convicted. As the Magistrate considered the offence to be “a most minor breach of a technical nature”, no penalty was imposed on Mr Osgood and no conviction recorded against him. Mr Osgood appeals against the finding of guilt.
At the trial in the Magistrate’s Court evidence was given by Sergeant Austen, the police prosecutor, and by Mr Osgood himself, as to precisely what occurred outside Magistrates Court No. 6. The Magistrate accepted Mr Osgood’s evidence that when speaking to B he was looking at B, although there was no dispute that A was sitting next to B.
Magistrate’s decision
The Magistrate found that Mr Osgood was positioned in the alcove outside the court room before the arrival of A and B and that when A and B sat in the same alcove they were aware of Mr Osgood’s presence. The Magistrate also accepted that B was the person who initiated the conversation with Mr Osgood and that he then replied. The Magistrate was of the view that “the presence alone of [B] and [A] in the presence of Mr Osgood after Mr Osgood had positioned himself there first, would of itself not be a breach of the bail condition provided Mr Osgood removed himself immediately from the area. There was, however, a conversation in this case in which Mr Osgood engaged, albeit for a very short period of time, and subsequently to that, having observed Sergeant Austen, he removed himself from the alcove”.
The Magistrate referred to a dictionary meaning of “contact” as being “close association or meeting” and of “indirect” as being “not direct, roundabout, secondary”.
It was the Magistrate’s view that Mr Osgood should have removed himself from the area immediately that B and A sat down, or at the very latest, once B spoke to him and that if that had occurred she “would have no hesitation whatsoever in acquitting [him]”.
Meaning of condition on bail undertaking
Mr Osgood argues that he had no intention of breaching the condition on his bail undertaking or of having any contact with A. The respondent conceded that Mr Osgood had no intention to contact A.
The simple point in issue on this appeal is whether, on the basis of the facts accepted by the Magistrate whereby Mr Osgood for a brief period of time remained in close physical proximity to A and B after they unexpectedly joined him in the alcove, and then responded to a query made of him by B, he could be said to have had contact, either directly or indirectly, with A.
Whilst an application of dictionary meanings of the words “contact” and “indirect” may well support a conclusion that the facts of this case do amount to an indirect contact by Mr Osgood of A, nevertheless in the context of a criminal charge, and bearing in mind the intention of the special condition on Mr Osgood’s bail undertaking, Mr Osgood could not be said to have had contact either directly or indirectly with A in breach of the condition on his undertaking in the circumstances of this case.
The condition of no contact with A was clearly placed on Mr Osgood’s bail undertaking so as to protect A from any violence, harassment or intimidation. There is no suggestion whatsoever on the facts of this case that contact in that sense occurred.
To interpret the condition on Mr Osgoods’ bail undertaking as imposing a positive requirement on him to remove himself from the alcove in the circumstances of this case, is to unreasonably distort the meaning of the condition and impose obligations upon him that are not obvious from an ordinary reading of the words used.
I allow the appeal and order that Mr Osgood be acquitted of the charge.
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