P v Joshua William McMillan

[2010] NSWLC 9

Local Court of New South Wales

CITATION:	P v Joshua William McMillan [2010] NSWLC 9
JURISDICTION:	Criminal
PARTIES:	NSW Police Joshua William McMillan
FILE NUMBER:
PLACE OF HEARING:	Wagga Wagga Local Court
DATE OF DECISION:	04/30/2010
MAGISTRATE:	Magistrate Lerve
CATCHWORDS:	Move on direction – LEPRA – reasonableness of direction - whether direction too broad – meaning of CBD
LEGISLATION CITED:	Law Enforcement (Powers and Responsibilities) Act 2002 Local Government Act 1993
CASES CITED:	Spatolisano –v- Hyde [2009] ACTSC 161
TEXTS CITED:
REPRESENTATION:	Sgt. Keane, Police Prosecutor Mr. J. Elliott, Solicitor of the Aboriginal Legal Service
ORDERS:	Offence proved.

1. Although the offence with which the accused is charged is relatively minor, (a fine of $220 is the maximum available penalty) a matter of what is my view considerable interest is raised, and accordingly I reserved my decision to properly research the point that is raised. The point raised is whether the direction given to the accused in this matter was reasonable within the meaning of that word in s. 197(2) of the Law Enforcement (Powers and Responsibilities Act) 2002. There is no issue on the facts, and indeed, by consent, the prosecution “handed up” the brief, which is constituted by statements by Detective Sergeant Burns and Detective Bradley Blanchard and two maps of the relevant area of the city of Wagga Wagga.

Facts

2. The evidence for the prosecutions is contained within the police statements of Detective Sergeant Burns and Detective Blanchard. Those statements are exhibits 1 and 2 respectively in the case. At about 11pm on 18 December 2009 the detectives who have given statements in the matter were conducting foot patrols at the intersection of Fitzmaurice and Sturt Streets, Wagga Wagga. Incidentally, that is a “T” intersection. The Court House is on one corner, and directly opposite the Court House is Romano’s Hotel. Detective Burns recognised the accused. He saw the accused speak with security staff at Romano’s Hotel. There was a group of about 4 or 5 men in that same vicinity. The accused said something that was indistinct to that group. One of that group replied to the accused who in turn pushed that person. Heated words were then exchanged. It was the opinion of Det. Sgt. Burns that the accused was going to start a fight with this person.

3. The two police officers approached the accused, identified themselves and asked the accused to move slightly in order that he could hear what they were saying. There was an exchange between the police and the accused in which the accused continued to use offensive language. He calmed down, but inquired in effect as to why the police were speaking to him.

4. Detective Blanchard then said to the accused:

“We saw otherwise, so this is what’s going to happen. Because you were harassing that group of people, who from what we could see weren’t doing anything to you. We are giving you a Move On Direction. We are directing you to leave the CBD, which is the main street and all off streets. Do you understand that?”

The italicised words are the words that constitute the direction, which on the argument advanced on behalf of the accused is not reasonable.

5. The accused said, “yes” in response to the question asked at the conclusion of the direction being given. Detective Blanchard then warned the accused that if he did not comply with the direction he would be committing an offence. The accused then replied, “Yes, that’s fine with me I was going home anyway. I live on Byrnes Road over the bridge and was walking that way”. The police officers were of the opinion (that is apparently not disputed) that the accused was moderately to well affected by liquor. The accused was again directed to comply with the direction that he was given and walked off in a northerly direction along Fitzmaurice Street. The “bridge” to which the accused referred must be a reference to the Wiradjuri Bridge over the Murrumbidgee River, that is at the northern extremity of Fitzmaurice Street. The Wiradjuri Bridge and Fitzmaurice Streets are shown clearly enough on the first of the maps within exhibit 3.

6. Security staff at Romano’s Hotel were advised by police of the direction they had given to the accused. At about 11.15pm police saw the accused talking to a security guard at another hotel on the western footpath at the intersection of Fitzmaurice and Kincaid Streets. Detective Blanchard warned the accused that he would be arrested if he did not leave the area immediately. The accused told the officer that he (accused) was “heading home to Byrnes Road over the bridge in North Wagga”. The accused walked in a northerly direction along Fitzmaurice Street and walked diagonally across Fitzmaurice Street to the eastern footpath and continued to heading north.

7. The accused did not, however, continue on his way home. He instead made his way to the rear of the Duke of Kent Hotel, an hotel approximately 200 metres north of Romano’s hotel, and south of the intersection of Fitzmaurice and Kincaid Streets. The police officers observed the accused to attempt to climb a steel support post at the Duke of Kent Hotel.

8. Detective Blanchard approached the accused and advised him that he was under arrest. The accused maintained that he was going home, to which the officer said, “No you weren’t, you are heading in the wrong direction and you were trying to get into the Duke Hotel. So now you’re coming to the police station”.

9. Neither Detective Sergeant Burns or Detective Blanchard were required for cross-examination. Accordingly, I proceed on the basis that there is no issue with the contents of their statements. Reference is made to the knowledge of the police officers of the accused and that must be ignored.

Legislation

10. It seems to me that the relevant legislation is sections 197 and 199 of the Law Enforcement (Powers and Responsibilities) Act, 2002 (LEPRA). Those sections provide:

197 Directions generally relating to public places

(1) A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place (referred to in this Part as “ relevant conduct ”):
(a) is obstructing another person or persons or traffic, or
(b) constitutes harassment or intimidation of another person or persons, or
(c) is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or
(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or
(e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.
(2) A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of:
(a) reducing or eliminating the obstruction, harassment, intimidation or fear, or
(b) stopping the supply, or soliciting to supply, of the prohibited drug, or
(c) stopping the obtaining, procuring or purchasing of the prohibited drug.
(3) The other person or persons referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in.
(4) For the purposes of subsection (1) (c), no person of reasonable firmness need actually be, or be likely to be, present at the scene.

199 Failure to comply with direction
(1) A person must not, without reasonable excuse, refuse or fail to comply with a direction given in accordance with this Part.

Maximum penalty: 2 penalty units.

(2) A person is not guilty of an offence under this section unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct.

11. No specific submission was put to me, but it is tolerably plain that the prosecution rely on the matters set out in s. 197(1)(b) and/or (c) to justify Det. Blanchard giving the “move on direction” to the accused.

The Authorities

12. There is a dearth of authority on the issue of s. 197 of LEPRA in New South Wales. I cannot find a decision from the Supreme Court of New South Wales where this question has been considered or determined, nor have I been directed to any. The prosecutor has very helpfully referred me to the decision of Spatolisano –v- Hyde [2009] ACTSC 161. That was a decision of Refshauge J. concerning a “Move On” direction given in accordance with the Crime Prevention Powers Act (ACT). The relevant legislation is set out at [5] of the judgment of Refshauge J. It is very similar to the provisions of s. 197 LEPRA. Indeed, it is my opinion for so far as determination of the issue before me is concerned any difference in the two sets of legislation is immaterial.

13. Refshauge J. in Spatolisano –v- Hyde said at [51]-[54]:

“…

Constable Hyde said, ‘I have reasonable grounds to believe you have been involved in violent conduct and may be involved in violent conduct should you remain in the area. I am giving you a formal direction to leave the area of the Kinston shops for a period of 6 hours. You have 5 minutes to comply with this direction, do you understand?’

52. The area was described as ‘the Kingston Shops’. By returning to Highgate lane, Mr. Spatolisano clearly came back to the Kingston shops and would have breached the direction, but that description of the area leaves much room for argument about where the limits were. For example, does it include the car park opposite the block bounded by Kennedy, Giles, Jardine and Eyre Streets? Then there is the question of the south side of Kennedy Street were there are commercial offices and as to whether that area forms part of the Kingston shops.

53. I do not stop to consider whether the direction is unlawful if it does not describe the area to be vacated with precision and detailed particularity. There is nothing in the legislation itself to suggest that it is so required. An inadequate description of the area may instead go to the question of whether there is a reasonable excuse for contravention if the area where a defendant is found is arguably not comprehended within the direction or there is reasonable uncertainty about what is encompassed in the direction. This is a significant problem with the legislation, for persons should always know as clearly as possible what they must do to avoid committing a criminal offence and yet the direction here, which, of course, is a limitation of the right, protected under s. 13 of the Human Rights Act 2004 (ACT) to move freely about the ACT, may not leave the person to whom it is given with any clarity about the limits of that right and how they may avoid committing a criminal offence.

54. If the legislation has a valid criminal justice purpose, then attention may need to be given to addressing these issues.

Meaning of CBD or Central Business District

14. The expression “CBD” as an acronym or set of initials for the expression central business district is one that is generally known and accepted in the community. That expression “CBD” or central business district is generally a very broad one, and it seems to me even broader when it comes to the city of Wagga Wagga, given the expanse of Bayliss and Fitzmaurice Streets, the main streets of the city. The prosecutor made available (without apparent objection), together with the decision of Refshauge J. to which I have just referred, a copy of the “Environmental Planning Framework” from the Wagga Wagga City Council. For the purposes of the Local Government area the Central Business District is defined by a map at figure 30.1. It is in two halves, essentially because of the Wollundry Lagoon that splits the area. The northern area is bounded by Crampton Street, Traill Street, Cadell Place (laneway immediately adjacent to the levee bank) and the lagoon itself. The southern part of the central business district is bounded by the lagoon, Peter Street, the railway line, Fitzhardinge Street, Morgan Street and a series of streets just to the west of Tarcutta Street. The areas so bounded and so described at figure 30.1 of the Environmental Planning framework are almost exclusively dedicated to various retail, commercial, professional and other business enterprises. It is the local government areas that usually define the various parts of urban areas for planning and the like – see for example Division 3 of Chapter 7 of the Local Government Act 1993. It is my opinion that this court can validly look to the areas as defined by the relevant local government authority for guidance, in the absence of any other guidance or authority. I have not been directed to any such guidance or authority, nor have I independently been able to locate any. In the absence of anything else, I find that the central business district of the city of Wagga Wagga is as it is defined by the Wagga Wagga City Council.

Consideration

15. Therefore, it follows that I find the accused was in the central business of Wagga Wagga at the time he was initially spoken to by the police officers, and he was within the central business district of Wagga Wagga at all times from when he was given the direction to when he was arrested at the rear of the Duke Hotel.

16. I then turn to the issue of whether the direction was too broad. Although I am technically not bound by a decision of the Supreme Court of Australian Capital Territory, it would be highly inappropriate for any Magistrate to decide contrary to such an authority without very good reason. In the matter presently under consideration the expression “CBD” or central business district can be defined. As with the legislation that Refshauge J. was considering in Spatolisano v- Hyde the relevant legislation that I am considering likewise does not require that the area to be vacated has to be described with “precision and detailed particularity”. The “CBD” is a very similar expression to “the Kingston shops”. Although the direction was broad, and the area of the CBD as I have found it to be quite extensive, I am unable to find that it was too broad for the purposes of section 197 to 199 inclusive of the Law Enforcement (Powers and Responsibilities) Act 2002. I do, however, with unfeigned respect endorse the comments of Refshauge J. on the issue of the legislation perhaps needing some attention.

17. In the matter presently under consideration there is no real issue on the facts. The brief was tendered by consent, and neither police officer was required for cross-examination.

18. I must then consider s. 199(2) of the Law Enforcement (Powers and Responsibilities) Act 2002 and decide whether I am satisfied to the criminal standard that the accused “persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct”. No objection was taken to any part of the statements of the police officers. However, even for the purposes of this decision excluding the hearsay contained in those statements (particularly the statement of Sgt. Burns) I am satisfied to the criminal standard that after being given the direction the accused went to the Tourist Hotel. He then “doubled back” in effect going to the rear of the Duke Hotel. Paragraph 25 of the statement of Sgt. Burns is particularly relevant on this issue. The accused was observed to be climbing a post to get to the balcony of the Duke Hotel. The accused said, “Come down here you cunts, I’ll fight you”. Sgt. Burns goes on to say “the accused kept up a tirade of abuse and challenges to the patrons of the hotel”. There is no challenge to the fact that this is what occurred and that those words were said by the accused. I am therefore satisfied to the criminal standard that the accused persisted in the conduct or other relevant conduct that led to the “move on” direction initially being given to the accused.

19. I do not have a transcript of the succinct but comprehensive submissions of Mr. Elliott on behalf of the accused. However, my notes indicate that the essence of the arguments advanced was that the direction was too broad in that the area the accused was required to vacate was too imprecise, that given that imprecision the accused was entitled to be confused as to precise nature of the direction, and further, again given the imprecision, the direction was not reasonable. Therefore, Mr. Elliott argued, the case against the accused could not be made out. It will be clear from what I have said to this point in my reasons, that I am not of the opinion that the direction was too broad. Even if the accused was confused or not clear there was no effort by him to ask for any clarification. But while it should not be for the accused to have to ask for such clarification there was not on the material before me any indication that the accused did not comprehend or understand the direction given to him by police. Further, even if the accused was confused or was not aware of the area of the CBD, he “doubled back” and went to the rear of the Duke Hotel. In so doing, by his conduct he was making it plain in my opinion that he was not complying with the direction given to him by police. Mr. Elliott argued quite forcefully the direction was not reasonable because the direction was in effect so broad it defied compliance.

20. The prosecutor argued that the area of the CBD was something that was readily understood. The prosecutor also argued for the application of common sense, and relied upon the continuing conduct of the accused.

Conclusion

21. For these reasons I find the offence proved.

Gordon Lerve

Magistrate

Wagga Wagga Local Court

30 April 2010