Police v Booy
[2010] QMC 11
•6 April 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Booy [2010] QMC 11
PARTIES:
POLICE
(prosecution)
v
JAMES BERNARD BOOY
(defendant)
FILE NO/S:
MAG89017/09(2)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Atherton
DELIVERED ON:
6 April 2010
DELIVERED AT:
Mareeba
HEARING DATE:
5 February 2010
MAGISTRATE:
Braes TJ
ORDER:
Not guilty
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST PEACE AND PUBLIC ORDER – what constitutes public nuisance – whether can obstruct police if police are acting outside of duties
Summary Offences Act 2005 (Qld), s 6
Police Powers and Responsibilities Act 2000 (Qld), s 790
Couchy v Birchley [2005] QDC 334
COUNSEL:
Hafner (sergeant) for prosecution
Magoffin (solicitor) for defendant
SOLICITORS:
Mr Booy has pleaded not guilty to one charge of committing a public nuisance offence and one charge of obstructing Sergeant Simon Atkinson in the performance of his duties.
In order for me to find Mr Booy guilty of the charges I must be satisfied that all the elements of the charges have been proved to the standard required, that being beyond a reasonable doubt. The onus of proving those elements and of negativing any excuse raised to such standard is, of course, upon the Prosecution. Should the Prosecution fail to prove those elements to the standard required, then I must of necessity acquit Mr Booy of the charges.
Sergeant Hafner provided verbal particulars of the charges; that the Defendant and associates were spoken to regarding bulls being disturbed at the Mount Garnet rodeo, that the Defendant had become abusive and aggressive and used obscene language and called the police officer a fucking liar. That he moved towards the officer in an aggressive and threatening manner and that he was then arrested. After being arrested the Defendant struggled against police and despite numerous requests to calm down continued to struggle, was handcuffed and restrained and then later issued a Notice to Appear and released. The particulars also included the statement that the officer was exercising his duties under the Police Service Administration Act section 2.3: the preservation of peace and good order.
At the commencement of proceedings I was informed that Mr Booy admitted in respect of the public nuisance charge the date, time, place, that he was the person involved in the matter and that the event occurred in a public place. Mr Booy also made admissions in respect of the obstruct charge in respect of the date, time, place, that he was the individual involved in the incident, and that Sergeant Atkinson is a police officer.
EVIDENCE
Sergeant Atkinson, Senior Constable Kendjelic, Constable Edward and Constable Hinrichsen were conducting foot patrols at the Mount Garnet races and rodeo on the evening of Sunday 3 May 2009.
SERGEANT ATKINSON
At between 12.30 and 1.00am Sergeant Atkinson could see that the bulls in the bull pen were being agitated and moving around. There had been some previous trouble with youths stirring up the bulls in the bull pen. Sergeant Atkinson and the other officers headed towards the bull pen. As he approached the bull pen he could see the legs of three people behind a truck. As the officers approached the truck the three men, including Mr Booy, came out from behind the truck. Sergeant Atkinson and Senior Constable Kendjelic went to Mr Booy. Constable Hinrichsen went to Kieran Prior, a young man he had spoken to earlier in the evening about stirring up the bulls and to whom he had given a move on direction, Constable Edward went to Aaron Bowyer, whom she said she had seen throw a bottle into the bull pen.
Sergeant Atkinson said that as he approached the three young men he asked them collectively what had been thrown at the bulls. Mr Booy, who appeared to be the loudest of the group of three and appeared somewhat anti-police in his demeanour, said that nothing had been thrown. Sergeant Atkinson and Senior Constable Kendjelic approached Mr Booy and asked him again what was thrown at the bulls. Again Mr Booy said that nothing had been thrown at the bulls. Mr Booy strongly denied that anything had been thrown at the bulls and accused Sergeant Atkinson of lying. This discourse between Sergeant Atkinson and Mr Booy with Sergeant Atkinson asking what had been thrown at the bulls and Mr Booy saying that nothing had been thrown appears to have continued for some time.
Sergeant Atkinson denied he said “We saw you throw a fucking bottle?” Sergeant Atkinson said that as he had seen something thrown one of them (that is himself or Mr Booy) must have been lying. It appears more likely from the evidence that Mr Booy was walking in front of Mr Prior and Mr Bowyer and that Mr Bowyer had thrown the bottle. It is likely that Mr Booy did not see this and was unaware that Mr Bowyer had thrown the bottle. Sergeant Atkinson was still, at the hearing, insisting that either he or Mr Booy must have been lying as he had seen something thrown into the bull pen. That Sergeant Atkinson would continue to say this may be an indication of the way he approached Mr Booy at the relevant time. There is no evidence that Mr Booy saw anything thrown into the bull pen. Sergeant Atkinson admitted in cross-examination that he said to Mr Booy; “Are you calling me a liar?” Mr Booy became aggressive, called Sergeant Atkinson “a fucking liar” and in the process took a step towards him at which point he informed Mr Booy that he was under arrest for public nuisance. Sergeant Atkinson said in his evidence in chief; “I recall that Mr Booy was becoming aggressive towards me in the way that he was speaking and at which point he called me a fucking liar. He took a step towards me. At that point, he was informed that he was under arrest for a public nuisance offence. I recall that he tried to leave the area immediately. He was taken hold of by Senior Constable Kendjelic. He was struggling with Kendjelic and he was told numerous times to calm down. During the struggle, they’ve actually fallen to the ground. I’ve told Booy to calm down; stop resisting. I’ve then assisted with Kendjelic and I’ve placed the handcuffs on Booy.” In cross examination this exchange occurred between Mr Magoffin and Sergeant Atkinson; “And then you say he then, what, turned to run or something, did he?—Tried to get away as soon as he told that, as soon as he was told he was under arrest. With Kendjelic standing behind him?—Yes. So, he didn’t have anywhere to go?—Well, he took a step forward so he moved away from Kendjelic and as soon as he was – soon as he tried to turn, run, Zoran’s grabbed hold of him.” Mr Magoffin asked Sergeant Atkinson why it was necessary to restrain Mr Booy. Sergeant Atkinson said, “Because he was under arrest and he tried to run from us.” Sergeant Atkinson reaffirmed the fact that Mr Booy had tried to run away from the Police, he said; “he wasn’t being helpful to us and as soon as I informed him he was under arrest and he tried to get away, then Kendjelic took hold of him”. Senior Constable Kendjelic was standing near Sergeant Atkinson. Sergeant Atkinson said that Mr Booy struggled and he and Senior Constable Kendjelic both fell to the ground, where Mr Booy continued to struggle. Sergeant Atkinson told Mr Booy to calm down. Sergeant Atkinson said that “Mr Booy was face-down on the ground and I’ve handcuffed him behind his back.” Eventually he calmed down. He was stood up by the officers the handcuffs taken off, and he was given a Notice to Appear for the two offences and told to keep away from the bulls.
Sergeant Atkinson clarified Mr Booy’s demeanour when Sergeant Hafner asked him about Mr Booy’s tone of voice. Sergeant Atkinson said that Mr Booy was strongly denying throwing the bottle. That he was aggressive in his manner. That he was not calm. That he was not talking in a civil manner and that he was quite loud. These statements are in general terms. They are not evidence of what was said to be aggressiveness. There is no evidence of any overt act of aggressiveness other than being loud, calling Sergeant Atkinson a fucking liar and taking a step towards him. Sergeant Atkinson when pressed in cross-examination said Mr Booy was agitated and tense and took a step towards him. He also said that he thought Mr Booy raised his hands. This evidence was less than convincing; Sergeant Atkinson had not mentioned Mr Booy being tense in his evidence-in-chief and had not mentioned anything about his raising his hands. I reject it. If there was more in the way Mr Booy displayed aggressiveness the officers did not give evidence of it. Mr Magoffin asked Sergeant Atkinson why it was necessary to arrest Mr Booy to which Sergeant Atkinson replied it was necessary to arrest him because of his behaviour and his aggressive step towards him. Sergeant Atkinson admitted that Mr Booy had not attempted to strike him.
SENIOR CONSTABLE KENDJELIC
Senior Constable Kendjelic also participated in the questioning of Mr Booy in that he appears also to have put to Mr Booy that he had seen an object flying through the air and dust in the bull pen from the bulls being agitated and moving around. He also said to Mr Booy “are you calling my Sergeant a liar?” This appears to have been prior to Mr Booy calling Sergeant Atkinson a fucking liar. Senior Constable Kendjelic appeared uncertain at times in the witness box. He was asked by Mr Magoffin whether Sergeant Atkinson had put to Mr Booy the question; “Are you calling me a liar?” Senior Constable Kendjelic appeared not to know what to say, and answered by saying he couldn’t recall Sergeant Atkinson saying that. Sergeant Atkinson admitted to Mr Magoffin that he had said this. Mr Magoffin put to Senior Constable Kendjelic that Mr Booy said he had not thrown anything. Senior Constable Kendjelic answered with, “I can vaguely recall that”, and “I’m not hundred percent sure”, and “he might have said, might have not, don’t know”. Likewise when the use of the word “mate” was put to him he “couldn’t recall”, and also said it was a “possibility”. Mr Magoffin put to Senior Constable Kendjelic that Sergeant Atkinson became angry and aggressive with Mr Booy. Senior Constable Kendjelic answered with “I would say when Mr Booy called Sergeant a fucking liar no one likes to be called that”. Senior Constable Kendjelic said that Mr Booy had been standing as Mr Magoffin was in court, which was with his hands in front of him in a non-aggressive way.
The following further exchanges took place between Mr Magoffin and Senior Constable Kendjelic. “What was Mr Booy’s demeanour towards the sergeant when he said that?—I would say aggressive, he stepped forward towards the sergeant and myself, I was standing right next to the Sergeant. Grabbed him – grabbed Mr Booy by the arm; that’s what we do when – when we say “you’re under arrest.” What did Mr Booy do when he was advised he was under arrest?—Resisted. How did he resist, what did he do?—Didn’t want me to touch him---- Yes?-- -----which resulted in me restraining him, got him on the ground, placed in handcuffs.” And later; “So, is it that you were effecting an arrest upon Mr Booy? --- I remember Sergeant saying “You’re under arrest for public nuisance”. I kept hold – I went to – I wouldn’t say “grab” – to hold his – his arm, and as a result of that, he start – Mr Booy started being unco-operative, and we ended up on the – on the ground. So, that was the unco-operative behaviour, was struggling with you; was it?—I- I was opinion he didn’t want to – didn’t want to get arrested. Mmm-hmm?—Tried to get away---- Mmm-hmm? -- ---- and that’s what resulted in both of us landing on the ground. Yes. And he didn’t get away, did he, he obviously----?—No. No, he didn’t. And he didn’t try to run off, did he?—No”. Senior Constable Kendjelic denied pushing Mr Booy to the ground or that he had lost control of the situation. Senior Constable Kendjelic used restraining tactics to subdue Mr Booy who had continued to struggle on the ground. This involved putting Mr Booy’s arms behind his back, placing one knee on his shoulder and one knee on the side of his back and handcuffing him.
The evidence of Sergeant Atkinson and Senior Constable Kendjelic is contradictory in respect of Mr Booy’s reaction to being informed he was under arrest. Sergeant Atkinson says Mr Booy tried to leave the area immediately. Senior Constable Kendjelic says he took Mr Booy by the arm immediately he was told by Sergeant Atkinson he was under arrest; and that this was what made him struggle. Mr Booy says that once he called Sergeant Atkinson a liar that was it, and the next thing he knew he was on the ground. He denied turning to move after he was informed he was under arrest.
CONSTABLE EDWARD
Constable Edward indicated that she made a beeline for Mr Bowyer, keeping him in her sight as she had seen him throw the bottle into the bull pen. She said that she told Sergeant Atkinson that she knew who threw the bottle but she was not sure whether he had heard her.
Constable Edward said that when she was speaking to Mr Bowyer she heard Senior Constable Kendjelic ask Mr Booy if he was calling his Sergeant a liar. Upon hearing this she looked over and could see that Sergeant Atkinson and Senior Constable Kendjelic were still talking to Mr Booy. She continued to talk to Mr Bowyer. She then heard a noise and looked back to see that Senior Constable Kendjelic and Sergeant Atkinson were trying to restrain Mr Booy on the ground. Mr Booy was yelling and physically resisting while the officers were trying to handcuff him. Constable Edward said that eventually Sergeant Atkinson and Senior Constable Kendjelic did restrain Mr Booy who was placed in a van and the other two, Mr Bowyer and Mr Prior were moved on. Mr Booy calmed down and was issued with a Notice to Appear. Constable Edward and Constable Hinrichsen both say that Mr Booy was placed in a van or police vehicle. There is no other evidence to support there being a police vehicle there at all. The commotion with Mr Booy was not of sufficient interest or concern to Constable Edward to make her leave Mr Bowyer and go to the assistance of Sergeant Atkinson and Senior Constable Kendjelic.
CONSTABLE HINRICHSEN
Constable Hinrichsen said that he directed his attention to Kieran Prior as he had spoken to him a little earlier in the evening. He said that he could hear raised voices and that he continued to speak to Mr Prior. He turned around and observed Sergeant Atkinson and Senior Constable Kendjelic wrestling Mr Booy on the ground. At this time he saw another group of people approaching towards the officers, so he went and intercepted that group and told them to move away. Sergeant Atkinson and Senior Constable Kendjelic had handcuffed Mr Booy who was subsequently given a Notice to Appear and released. The commotion with Mr Booy was not of sufficient interest or concern to make him leave Mr Prior and go to the assistance of Sergeant Atkinson or Senior Constable Kendjelic.
MR BOOY
Mr Booy gave evidence on his own behalf and called Mr Stewart to give evidence. Mr Booy said that Sergeant Atkinson asked what was thrown into the arena to which he replied that he did not throw anything. Sergeant Atkinson asked him again what was thrown into the arena. He said that the Sergeant also said that he had seen him throw something into the arena and asked what he had thrown. Mr Booy continued to deny that anything had been thrown saying that nothing was thrown. This conversation apparently went on for a little while until Mr Booy said “I didn’t throw anything mate.” Sergeant Atkinson replied “I am not your fucking mate.” Again the conversation appears to have gone on with Sergeant Atkinson asking what was thrown and asking Mr Booy if he was calling him a liar. Mr Booy said that he replied yes and the next thing he knew he was on the ground with a knee in his face. He denied calling Sergeant Atkinson a fucking liar. He said that the police were just screaming at him telling him to stop resisting and again asking what he had thrown into the arena to which he again replied “Nothing.” The police officers continued to ask the same question after which Mr Booy simply did not respond to it.
In cross-examination Mr Booy admitted that he had been drinking at the rodeo and admitted that he and his friends had been skylarking and acting stupidly earlier in respect of the bulls. Mr Booy admitted that he answered yes to Sergeant Atkinson when he was asked if he was calling the Sergeant a liar. He also admitted that he may have been leaning forward when speaking to Sergeant Atkinson.
MR STEWART
Mr Stewart is a friend of Mr Booy. He too was walking back to camp at the time when Mr Booy was intercepted by the police. Whereas Mr Booy, Mr Prior and Mr Bowyer had skirted around the bull pen and between the truck, Mr Stewart and others continued to walk along the roadway. He heard the officer asking who had thrown the bottle. Mr Stewart said that he also had seen something get thrown into the pen although he did not know what it was. He said that he heard Mr Booy say “I didn’t throw a bottle mate” and Sergeant Atkinson ask if he was calling him a liar. He also heard Senior Constable Kendjelic ask Mr Booy if he was calling his officer a liar. Mr Stewart said that Mr Booy responded “Well yeah, I didn’t throw the bottle mate.” Whereupon the two officers threw Mr Booy to the ground. He said that Mr Booy when on the ground was not resisting but was lying there like a stick not moving at any time. Mr Stewart said although he had been drinking he had cut back and had had only one rum after dinner as he was going to leave the rodeo grounds early on Monday morning. Although Mr Booy had conceded that he may have been leaning forward when he was talking to Sergeant Atkinson, Mr Stewart said that that definitely was not the case.
THE ARREST
Sergeant Atkinson arrested Mr Booy because he called him a fucking liar and took a step towards him. To effect the arrest Senior Constable Kendjelic took hold of Mr Booy.
It has been difficult to determine exactly what happened once Senior Constable Kendjelic took Mr Booy by the arm, particularly what part Sergeant Atkinson played. Sergeant Atkinson said he assisted Senior Constable Kendjelic and that he put the handcuffs on Mr Booy. He said he became involved in restraining Mr Booy to assist Senior Constable Kendjelic. He also said it took two of them to handcuff him. He said Mr Booy was struggling and was told several times to calm down. Mr Booy said that by the time he was on the ground he had one cuff on and an officer on his back, Sergeant Atkinson had his other arm. He denied struggling, he said he was lying there calmly, but admitted he was told to calm down. Mr Stewart said that when Mr Booy said “well yeah” in answer to Senior Constable Kendjelic’s question, “are you calling my officer a liar”, that the two officers threw him to the ground and that Mr Booy was just lying there like a stick. Constable Edward said Mr Booy was yelling and physically resisting while the officers were trying to handcuff him. Constable Hinrichsen said he turned around and observed Sergeant Atkinson and Senior Constable Kendjelic wrestling Mr Booy on the ground. Senior Constable Kendjelic said that he went to hold Mr Booy’s arm when the Sergeant told him he was under arrest. Mr Booy then started being unco-operative, struggled and he and Mr Booy ended up on the ground. Senior Constable Kendjelic denied pushing Mr Booy to the ground or that he had lost control of the situation. Senior Constable Kendjelic then employed restraining tactics to subdue Mr Booy who had continued to struggle, this involved putting Mr Booy’s arms behind his back, placing one knee on his shoulder and one knee on the side of his back and handcuffing him. He denied jumping on Mr Booy’s back and said that he followed the technique he was trained in at the Academy, which was to place one knee on the shoulder, and one knee on the side of the back. He then said “bring the arm, put cuff on, partner comes and gives you a hand with the cuff, that’s it.” This would suggest that Senior Constable Kendjelic put the cuff on one arm first, and that Sergeant Atkinson put the second cuff on. This is more consistent with Mr Booy’s evidence where he said; by the time he was on the ground he had one cuff on, an officer on his back, and that Sergeant Atkinson had his other arm.
FINDINGS OF FACT
After considering the evidence of the officers and that of Mr Booy and Mr Stewart I make the following findings of fact:-
1. Sergeant Atkinson and Senior Constable Kendjelic approached Mr Booy and Sergeant Atkinson repeatedly asked Mr Booy what had been thrown into the arena.
2. Constable Edward had already told Sergeant Atkinson that she knew who had thrown the object into the pen. Sergeant Atkinson must not have heard this given his ongoing questioning of Mr Booy.
3. Mr Booy was being loud in his responses to the questioning.
4. Mr Booy said “I didn’t throw anything mate.”
5. Sergeant Atkinson said “I am not your fucking mate”
6. Sergeant Atkinson asked Mr Booy if he was calling him a liar and Mr Booy, while taking a step forward and with emphasis, called Sergeant Atkinson a fucking liar.
7. Sergeant Atkinson then informed Mr Booy that he was under arrest.
8. Senior Constable Kendjelic immediately took Mr Booy by the arm. Mr Booy struggled with Senior Constable Kendjelic and they fell to the ground.
9. Mr Booy struggled against Senior Constable Kendjelic when he was on the ground.
10. Mr Booy continued to be loud until he was restrained by Sergeant Atkinson and Senior Constable Kendjelic by having the handcuffs put on him.
11. Senior Constable Kendjelic put one cuff on and Sergeant Atkinson put the other one on.
12. Mr Booy did not attempt to strike Sergeant Atkinson.
13. Mr Booy had prior to calling Sergeant Atkinson a fucking liar been standing in a non aggressive way.
14. At the time Mr Booy called Sergeant Atkinson a fucking liar he leant forward emphasising his statement before taking a step towards Sergeant Atkinson.
15. Neither Constable Edward nor Constable Hinrichsen was concerned enough by the situation to leave their subjects and go to the aid of the other two officers.
16. No one, other than Sergeant Atkinson and Senior Constable Kendjelic heard Mr Booy call Sergeant Atkinson a fucking liar.
I find it most surprising, even concerning that this situation was fostered by Sergeant Atkinson and allowed to continue as it did. That Sergeant Atkinson would continue to ask what was thrown once Mr Booy had indicated he had not thrown anything, and then put to Mr Booy that he was calling him a liar is unprofessional and lacks the consideration of an experienced police officer. Sergeant Atkinson, Constable Edward and Constable Hinrichsen were not local country police, they were members of the tactical crime squad, presumably well trained and experienced in dealing with people and potentially explosive situations.
PUBLIC NUISANCE
The question to be determined by me is whether, in the circumstances, that existed, that is, at about 12.30 to 1.00am at the Mount Garnet races and rodeo weekend in the vicinity of the bull pen, Mr Booy’s behaviour in being loud and calling Sergeant Atkinson a fucking liar as he took a step towards him would amount to a public nuisance.
SECTION 6 SUMMARY OFFENCES ACT
Public nuisance
(1) A person must not commit a public nuisance offence.
Maximum penalty—10 penalty units or 6 months imprisonment.
(2) A person commits a public nuisance offence if—
(a) the person behaves in—
(i) a disorderly way; or
(ii) an offensive way; or
(iii) a threatening way; or
(iv) a violent way; and
(b) 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.
(3) Without limiting subsection (2)—
(a) a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language; and
(b) a person behaves in a threatening way if the person uses threatening language.
(4) It is not necessary for a person to make a complaint about the behaviour of another person before a police officer may start a proceeding against the person for a public nuisance offence.
(5) Also, in a proceeding for a public nuisance offence, more than 1 matter mentioned in subsection (2)(a) may be relied on to prove a single public nuisance offence.
Sergeant Hafner submits that Mr Booy behaved in an offensive and/or threatening way and relies on subsection 5 of section 6 which provides that in a proceeding for a public nuisance offence, more than one matter may be relied on to prove a single public nuisance offence.
Would being loud and using an aggressive tone, and calling Sergeant Atkinson a fucking liar, while leaning slightly forward and taking a step towards him at about 12.30am at the Mount Garnet races and rodeo amount to offensive behaviour? Would taking a step towards Sergeant Atkinson at the time of calling him a fucking liar amount to threatening behaviour? The evidence supports a finding that there was no attempt to strike Sergeant Atkinson. Senior Constable Kendjelic said that Mr Booy had been standing as Mr Magoffin was in court, which was with his hands in front of him in a non-aggressive way.
In Coleman v Power, (2004) 78 ALJR Gummow, Hayne and Kirby JJ state that where offensive conduct is directed at a police officer, there is much less of a chance that the conduct in question will be considered an offence. This is because a police officer, by virtue of his/her “training and temperament” would not be provoked to such unlawful retaliation. As Kirby J says:
“The law would not impute that possibility to police officers who, like other public officials, are expected to be thick-skinned and broad-shouldered in the performance of their duties.”
Similarly, in their joint judgement, Gummow and Hayne JJ state that: “The bare use of the words to a police officer which the user intends should hurt that police officer” will not constitute an offence because police officers “must be expected to resist the sting of insults directed to them.” Thus, three members of the High Court clearly state that insulting language directed at a police officer will not, in the absence of highly exceptional circumstances, constitute offensive language within the meaning of the section. (Proctor October 2004 Walsh and McDougall).
In Butterworth v Geddes, unreported, District Court Queensland Forde DCJ Brisbane 13th of October 2005 refers to Coleman v Power in particular Gleeson CJ where he said “concepts of what is disorderly, or indecent, or offensive vary with time and place, and may be affected by the circumstance in which the relevant conduct occurs. The same is true of insulting behaviour and speech”
In Ashton v Green, unreported, District Court of Queensland Bundaberg Judge Skoien SJDC 8th February 2006 at paragraph 12 said “under section 7AA (now Section 6) the question of whether a person behaves in an offensive way by the use of offensive language must no doubt be judged objectively. Otherwise an offence could be committed by saying, to a person of extremely delicate sensibilities, something which that person found offensive but which most people would regard as quite acceptable. But in making an objective judgement the surrounding circumstances are surely relevant; such things as the time and place, the vehemence of the utterance and, relevantly, whether the utterance has, would be known to the speaker to have, and is intended by the speaker to have, special relevance to the recipient. In my opinion this utterance was vehement; the appellant must have known it to carry an extra sting when directed at police; he must have intended to inflict that extra sting.” And at paragraph 23 referring to Coleman v Power , “those passages support my opinion that subjective matters can be considered when deciding whether a statement is offensive to a particular person, but I do not take their Honours to be laying down a general rule that police officers cannot be offended by publicly expressed insult or abuse. The thrust of their comments was to the effect that the likelihood of a breach of the peace occurring as a result of the insult or abuse was an essential element of the offence under section 7(i)(d) of the Vagrants Act, the provision then being considered”.
I have had reference to the decision of McGill DCJ in the matter of Couchy v Birchley [2005] QDC 334, a case which has many similarities to the present. I have included a large portion of the decision hereunder, some of which I have underlined for emphasis:
McGill DCJ
[1] On 1 December 2004 the appellant was convicted after a summary trial of two offences, committing a public nuisance offence and obstructing a police officer in the performance of the officer’s duties.
[2] Although there were a number of grounds listed in the Notice of Appeal, and a lengthy outline of submissions, and a supplementary outline, on behalf of the appellant, on the hearing of the appeal four particular matters were raised and argued by counsel for the appellant, and it is sufficient to deal with those four matters. In relation to the first charge, the appellant argued that:
(a) There was insufficient evidence of identification of the appellant as the person concerned to sustain a conviction.
(b) The evidence before the magistrate did not establish that the appellant behaved in an offensive way, which is one of the elements of the public nuisance offence.
(c) The evidence before the magistrate did not establish that the appellant’s behaviour had interfered, or was likely to interfere, with the peaceful passage through or enjoyment of a public place by a member of the public, which is the other element of the offence.
[3] In relation to the second charge, it was submitted that the offence had not been committed because the appellant was not at the time lawfully in police custody, so that the police officer concerned was not acting in the performance of his duties.
Public nuisance offence: offensive behaviour
[30] The conclusion I have just reached is sufficient to determine the appeal in relation to Count 1. However, in case another view may be taken elsewhere, and because I have heard full argument, I will deal also with the two matters argued as to whether the person who behaved in the way described by the security guard committed a public nuisance offence. [The relevant passage of the judgment is; [5] The male refused and he said to him, “If you’re not going to put the cigarette out, please leave the building.” He said that the man refused, and while they were waiting for the lift “the short one started at me” saying various things including, “You’re nothing but a racist fucking piece of shit.”] The relevant provision is section 7AA of the Vagrants, Gaming and Other Offences Act 1931 (“the 1931 Act”). [This is the same as the present Section 6 of the Summary Offences Act]
[31] The question is whether the use of that language was an offence under the section.
Section 7AA(3)(a)
[32] It was submitted on behalf of the appellant that such language was not sufficiently serious to warrant criminal sanction, in accordance with contemporary community standards. Reference was made to statements by the High Court in Coleman v Power (2004) 78 ALJR 1166. In that case, the appellant had been charged with and convicted of the offence of using insulting words in a public place. The insulting words alleged to have been used were a statement that a particular police constable was “a corrupt police officer”. That case involved the issues of what would amount to “insulting words” for the purposes of the offence then contained in section 7(1) of the 1931 Act, and whether the provision was contrary to the freedom of political communication conferred by implication by the Commonwealth Constitution. Three members of the court concluded that the appellant’s conduct did not come within the prohibition on insulting words, as they would interpret that prohibition; four members of the court were of the contrary opinion, but one of those four was the only member of the court who thought that the sanction so construed did fall foul of the implied constitutional guarantee, so that it was invalid. On that basis, by a majority, the appeal was allowed.
[33] Neither of those issues which so divided the High Court in Coleman v Power arise in the present case. Furthermore, that case engaged questions of permissible limits of freedom of speech, and where the legislature was entitled to draw the line, and how a legislative attempt to draw a line should be interpreted. In my opinion it is only in a very general sense that what was said by the court there, essentially in relation to the interpretation of a prohibition on insulting words, and in a context where the appellant was ostensibly carrying on a public political campaign against particular police officers, is relevant to the circumstances of this case.
[34] There were some things said in Coleman v Power (supra) which are of some relevance in the present case, but not many. The Chief Justice on p1170 said:
“Concepts of what is disorderly, or indecent, or offensive vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs.”
[35] Gummow and Hayne JJ at p1199 said that because the section created a criminal offence which restricted freedom of speech, this was not to be curtailed except by clear words. At p1200 their Honours noted that enforcement of the proscription of profane, indecent or obscene language ensures that the minimum standard of what might be called decorum or seemly discourse in public places is maintained. A distinction was drawn by their Honours between that prohibition and the requirement that threatening, abusive or insulting words be used to a person in order to constitute a criminal offence, as indicating that the offence was not directed simply to regulating the way in which people speak in public. But in the present case, there is no requirement that the abusive language be used to any person.
[36] A context which is closer to that of the present applied in Del Vecchio v Couchy [2002] QCA 9. The applicant had been convicted of using insulting words in a public place contrary to the same provision in the 1931 Act because in an intoxicated state she said to the complainant police officer “you fucking cunt” or words to similar effect. In the Court of Appeal the Chief Justice, with whose judgment the other members of the court agreed, said that even allowing for modern licence, the community would generally still regard the use of such an expression to a female police officer going about her duty, albeit by a drunken person in the early morning, as insulting. His Honour also said that the test of whether the words were insulting was an objective test to be applied in accordance with contemporary community expectations. Special leave to appeal to the High Court was refused on 3 December 2004 partly because the issue had ceased to be of such importance because of the amendment to the Act, and partly because there was no sufficient prospect of success to warrant the grant of special leave. Some of the comments in the course of argument by the members of the High Court suggested that what was relevant was the subjective effect of the words on the recipient; but I am of course bound to apply the test stated by the Court of Appeal, that is, an objective test.
[37] In the context of the present legislation, which focuses on the effect on a member of the public in a public place, in my opinion there is no reason to doubt that the correct approach is an objective test. For the purpose of this element of the offence, it is not a question of whether the individual who was addressed by the words felt abused, or for that matter was offended or regarded them as obscene or indecent. The question is whether objectively in the prevailing circumstances the words met that description.
[38] In context, in my opinion, the whole of the section, and certainly the prohibition of language which falls within subsection (3)(a), are concerned with regulating public behaviour. This is shown clearly enough by the second reading speech of the minister who introduced the legislation by which section 7AA was inserted in the 1931 Act. He described the new part which included this section as “dealing with the quality of community use of public places”, as shown by the new title to part 2A. The minister spoke critically of “persons who choose to disrupt a family picnic in a park, groups of people who have nothing better to do than intimidate people at railway stations or persons who take delight in intimidating women or children at a shopping centre …”. He added that parliament intended the courts to interpret the new part 2A:
“In accord with current community standards at the time a charge is heard and determined … In determining what is a public nuisance offence in terms of the past, a court is not limited by but should take into account the examples contained in the explanatory notes to this bill. The amendment does not target a private conversation [between two persons drinking in a public bar of a hotel, but] should the same language be used in the restaurant of a hotel where children might be present, or a shopping mall, its use must be considered in a different context.”
[39] The minister went on:
“The amendment does not, in any sense, relax current laws so that a person may feel free to abuse their right to use a public place and in so doing, cause an unacceptable annoyance or interference to others who also wish to use a public place. I wish to make it clear that the amendment does [not] give any person the right to use offensive language in front of another in inappropriate circumstances. To be absolutely clear, the new provisions will also apply to persons who choose to insult or abuse police officers who are acting in the lawful execution of their duty. No-one should forget that our police officers are members of our community, the same as you and I … They should not have to accept offensive language directed to them from persons who choose to break the laws of Queensland.”
[40] In my opinion the words of section 7AA, read in their natural meaning and in context, and taking into account the authorities and extrinsic material, indicate that what was intended was an objective test to determine whether language fell within any of the terms specified in subsection (3)(a). Further, the focus of the prohibition is on the enjoyment of public places by the public in general, and the legislation is concerned with the effect or potential effect of, relevantly, language of the kind prohibited on the public in general in that place. In those circumstances, the subjective attitude to the language of the person using the language, and, ordinarily, the person to whom the language is used, is in my opinion irrelevant. There could be an exception in the latter case where the person to whom the language was used was the only other person present in the public place, and therefore the only other person whose passage through or enjoyment of the public place might have been adversely affected. It may be that different considerations arise in that situation. It is unnecessary to consider that in this case, because there was evidence that there were a number of other people present, so that the court was concerned with the attitude of the public generally.
[41] It follows from this that in my opinion the attitude to the words used of the offender, or for that matter, the security guard to whom they were used, were not relevant considerations. It was submitted on behalf of the appellant that she was indigenous, and gave indications of impoverishment, alcoholism and undersophistication. In my opinion they were not relevant considerations in determining whether the language that was used fell within the statutory prohibition. There is nothing to indicate that in a particular situation language which would be an offence if some people used it would not be an offence if others used it. Clearly the legislative intention was to require all persons to adhere to community standards. Similarly, in circumstances where there were other people present and presumably within earshot, whether there security guard was distressed by or indifferent to the language was equally in my opinion irrelevant. That follows from the example given by the minister, when he contrasted a situation where two people were using obscene language in a private conversation and a situation where they were doing so where their conversation could be overheard by members of the public in a public place. In the latter situation, both parties to the conversation might be entirely content with the language being used, but if it was offensive, obscene, indecent or abusive, and if it interfered or was likely to interfere with the enjoyment of a public place by members of the public who were within earshot, it is clear that it was the intention of the legislature that an offence be committed.
[42] The application of current community standards in the relevant context and circumstances is a matter for the magistrate, to determine as question of fact. It was for the magistrate to express the views and standards of the community in making this determination.
[43] In any case, whether or not people use particular expressions in private, or possibly even when they are alone, could hardly be relevant to the question of what is acceptable or unacceptable behaviour in a public place. It was said in 1969 that language of this kind was not quite so disreputable as it was 50 years ago, and no doubt that trend has continued, but, for what it is worth, my observation of human behaviour in such public places as I frequent, which on occasions includes the Myer Centre, is that ordinary people do not in practice use such language in those public places. I suspect the changing attitudes are reflecting more in changes in the use of such language in private, but in a section concerned with the standard of behaviour required of persons in public places, it is community standards as to the use of such language in a public place which are relevant. Indeed, it may be appropriate to consider the particular character of the public place in question.
[44] The first question is whether the words proved by the prosecution were abusive, or for that matter offensive, obscene or indecent, according to ordinary current community standards. The finding of the magistrate here was a little curious. At p6 the magistrate said the use of the words themselves was not a public nuisance offence. I find that somewhat puzzling. Although everything depends on the context, it is difficult to believe that in this case the offender used the words other than as an exercise in abusing the security guard, and it seems to me that in their ordinary and natural meaning the words clearly amounted to abusive language, in accordance with current community standards. Abusive language, in this context, means in my opinion language which is derogatory in an aggressive or hostile way. Indeed, I consider that in accordance with current community standards, they also amounted to offensive and obscene18 language.
[46] There was not, I think, clear evidence that the words in question were said in a voice loud enough so that they would have been heard, or were likely to have been heard, by the other members of the public in the vicinity, although given the evidence about how far away the security guard was from the offender, and the evidence of the other witness, that might have been able to be inferred. It would have been better if evidence had been led that the statement in question was made in a loud or clearly audible voice.
Section 7AA(2)(b)
[48] As to whether that test was satisfied in the present case, it was legitimate for the magistrate to take into account evidence as to the apparent effect on members of the public present, and it was also legitimate, in my opinion, for the magistrate to have regard to the ordinary effect which one would expect such language to have on members of the public in such a place. As to the former evidence, the difficulty with that evidence, which I think was appreciated by the magistrate, was that it was not shown that any particular reaction on the part of the people nearby was related specifically to the use by the offender of the words in question. The magistrate related that behaviour rather to the behaviour to the group as a whole in moving towards the lift with apparent intent to occupy it ahead of other people who had been waiting for it, who then moved back out of the way.
[49] If there is evidence of some particular reaction on the part of members of the public to the particular conduct relied on as constituting the offence, that is evidence relevant to whether the person’s conduct interfered or was likely to interfere with peaceful passage through or enjoyment of a public place by members of the public. It is necessary to relate the apparent response of the members of the public to the behaviour, but a temporal connection may be sufficient to establish that. I do not think that it is necessary to call members of the public who were present in order to establish the necessary causal link. It could be a matter of inference in an appropriate case.
[50] In the absence of evidence of an actual or verbal response, however, in my opinion it would be open to the tribunal of fact to be satisfied as a matter of inference that particular behaviour was likely to interfere with peaceful passage through or enjoyment of a public place by a member of the public. I do not think that the use of the term “enjoyment” was intended to confine the application of the section to people who are in the public place only for the purpose of pleasure, as distinct from people who are there in the course of some business or occupation, or for some other specific purpose. The people in question here were apparently people who were going home from work, but if the behaviour of a person in their vicinity was likely to distress or upset them, that would in my opinion have amounted to interference with the enjoyment of a public place by them as members of the public. The point of the legislation is clearly indicated in the title to that part of the Act, that is, the quality of community use of public places, and the public may make all sorts of use of public places, including, of course, peaceful passage through them. There was a clear legislative intention that people in such places should not be upset or distressed by disorderly, offensive, threatening or violent behaviour.
[51] Whether the use of any particular language interferes or is likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public depends on the presence of people within earshot in the public place. It will be appropriate to consider the number and character of the people within the range of operation of the language. If there was no-one in range, the offence would not be committed, nor if the only person or people within range are in fact indifferent to the language. It is clear from the second reading speech that the legislative intent was that, if the relevant people in the public place were or included police officers, the section would apply in the ordinary way to language directed to them. If there was only one person within earshot in the public place, the reaction of that person becomes of greater importance, and it may be more difficult to deal with the matter by way of inference if that person has not given evidence.
[52] In my opinion in the present case, in circumstances where there was evidence that there was a number of ordinary members of the public in the general vicinity, provided that the magistrate was able to find on the basis of the evidence that the words in question were said in a loud enough voice to be audible to those members of the public, it would have been open to the magistrate to infer from the nature of the words used that that behaviour was likely to interfere with the peaceful passage through or enjoyment of the public place by the members of the public present.
Offence of obstruction
[53] It was submitted on behalf of the appellant that there was no power to arrest her at the time, so that thereafter she was not lawfully in detention. In those circumstances, steps which were taken by the police, on the assumption that she was lawfully detained, were taken without any lawful excuse, so that the police officers in taking them were not acting in the execution of their duty. Accordingly, any action on her part could not have amounted to obstructing them in the execution of their duty.
[54] The legislative provision relied on by the respondent in relation to the arrest of the appellant was section 198 of the Police Powers and Responsibilities Act 2000 (“the 2000 Act”). [Now Section 365]
[55] The magistrate found that the three people were requested to go back to the Police Beat as the police officers were quite properly investigating a complaint that was given to them by the security guard: p8. That finding was consistent with the evidence. The officer who actually made the arrest was Constable Birchley. He said that along the way the three of them began to protest or remonstrate about having to go the Police Beat, and so he told them that they were under arrest for a public nuisance offence earlier in the Myer Centre: p39. In cross-examination Constable Birchley confirmed that the matters referred to in evidence-in-chief were all the issues that he took into account in making the decision to arrest them on that street, that is to say, that they were arrested for the public nuisance offence in the Myer Centre on the basis of the information provided by the security guard: p45. The arrest was in response to their no longer voluntarily accompanying police to the station for the purpose of their inquiry.
[56] That approach would have been appropriate if the police officer had reasonably suspected the appellant and her companions to have committed an indictable offence, pursuant to subsection 198(2) of the 2000 Act. But the offence they were suspected of having committed was not an indictable offence, and accordingly there was no power under that subsection to arrest without a warrant. Nevertheless, it was submitted on behalf of the respondent that a power to arrest arose under subsection (1), on the basis that the police officer reasonably suspected that the appellant had committed that offence, because it was reasonably necessary to prevent the continuation or repetition of the offence, or for one of the other reasons specified in subsection (1).
[57] The difficulty with this argument is that there was no evidence from the arresting officer to the effect that he was purporting to exercise the power under subsection (1), that is to say, of the existence of any purpose behind the arrest of preventing the continuation or repetition of the offence, or any of the other reasons set out in subsection (1). In these circumstances, it has not been shown that the arrest was lawful under subsection (1). No other basis on which the arrest could have been lawful was relied on on behalf of the respondent. It follows in my opinion that they were not lawfully arrested.
[58] The wording of the introductory words of section 198(1) is curious. It begins by requiring a reasonable suspicion on the part of the police officer, which is concerned with the state of mind that the police officer and the existence of reasonable grounds for that state of mind; obviously this is something which can occur even if ultimately the person arrested is not convicted of the offence in question, or for that matter any offence: Veivers v Roberts, ex parte Veivers [1980] Qd R 226. It then goes on to require that it be reasonably necessary to arrest the adult for one or more of a list of reasons, in words which do not clearly indicate whether what is required is a reasonable belief in that necessity on the part of the arresting police officer, or the objective existence of one or more of those reasons. Read literally, the words used seem to favour the latter interpretation, although it would I think be curious for the legislature to draw a distinction in this way between whether the offender has committed or is committing an offence, and whether it is reasonably necessary for one or more of the stipulated reasons. I suspect that this was a drafting error.
[59] It is, however, unnecessary for me to consider the matter further. If what was in fact required was the existence of a reasonable belief on the part of the arresting officer that it was reasonably necessary to affect the arrest for at least one of the stipulated reasons, there was no evidence before the magistrate of that reasonable belief, and indeed the evidence of the arresting officer was to the contrary. If what was required was that it was at the time in fact reasonably necessary for the arrest to be affected for one or more of the stipulated reasons, there was simply no evidence from any source of that. Since for the reasons given above it had not been proved that the appellant had committed an offence earlier, it could not have been established that she would have continued to commit the offence, or repeated the offence, had she not been arrested.
[60] There was no evidence that but for the arrest she would have committed an offence there and then. There was no evidence that arrest was necessary to make inquiries to establish her identity, in circumstances where there was no evidence that reasonable inquiries to establish her identity without effecting an arrest had been unsuccessful. There was no evidence that her appearance before a court could not have been secured by some process other than an arrest. There was also no evidence that it was necessary to arrest her in order to preserve the safety or welfare of any person, including herself.
[61] In Coleman v Power (supra) for one reason or another all of the justices except McHugh J found it unnecessary to consider the question of what the consequence was if the appellant had not been lawfully arrested, in relation to a charge that he subsequently obstructed police in the execution of their duty. McHugh J at p1189 said that such a charge was “predicated on the lawfulness of the action being resisted or obstructed … If the officer acts outside his or her duty, an element of the offence is missing.” Accordingly, the charge of obstructing police could not be sustained, although at p1190 he referred to the possibility of an alternative charge, assault, being open on the facts. In the present case, that issue did not arise before the magistrate, and I suspect it is now too late for it to be raised by the respondent; in any event, the respondent did not seek to do so. [Kirby J also considered the lawfulness of the arrest – see Coleman – Power Kirby J at [264]].
[62] In addition, the respondent did not submit that the second offence could be sustained on some other basis if the appellant had not been lawfully arrested. It follows that she was not properly convicted of the second offence, and in respect of that charge, the appeal must be allowed and the conviction set aside.
[63] The difficulty which arises in the present case is because there was no longer in the 1931 Act a separate power of arrest in respect of offences against that Act, as was the case at the time of Veivers (supra), and it was necessary to rely on the power of arrest provided in the 2000 Act. In that Act, an arrest by a police officer without a warrant for the purpose of questioning a person about an offence, or investigating an offence, is confined to a situation where the officer reasonably suspects the person has committed or is committing an indictable offence. In the case of a simple offence, there appears to be no power to arrest for questioning or investigation. It appears that this distinction may have been overlooked by both the police officer concerned and the magistrate.
[64] This was the only ground developed in argument before me in relation to the second charge. It has succeeded, and in the circumstances therefore it is not necessary or appropriate that I say anything in relation to any other of the grounds raised in the materials in relation to the second charge.
[65] Accordingly, the appeal is allowed, both convictions are set aside, and in lieu thereof verdict of acquittal is entered in respect of each charge. I will hear further submissions in relation to the question of costs.
While I do not condone loutish behaviour at events such as the Mount Garnet races and rodeo, the question remains whether Mr Booy’s behaviour would contravene contemporary standards of public order.
I do not regard the use of the word “fucking” by Mr Booy in the context of the conversation taking place between Mr Booy and Sergeant Atkinson at between 12.30 and 1.00am in the vicinity of the bull pen at the Mount Garnet races and rodeo of itself to be offensive. Although Senior Constable Kendjelic said that no-one likes to be called a liar, Sergeant Atkinson made no mention of the impact upon him of being called a liar. To be called a fucking liar is of course a derogatory statement which I believe does amount to offensive behaviour. Certainly a police officer, a person who should be of utmost good character could be offended by being called a fucking liar, even late at night at the Mt Garnet races and rodeo weekend.
Being called a fucking liar could, and I accept did on this occasion, amount to offensive behaviour, I am not satisfied that that behaviour coupled with a step towards Sergeant Atkinson but devoid of any other threatening language or gesture amounted to threatening behaviour.
Having found that Mr Booy’s behaviour amounted to offensive behaviour, it is still necessary to consider section 6(2)(b), that is; was Mr Booy’s behaviour such as to interfere, or to be likely to interfere, with the peaceful passage through, or enjoyment of a public place by a member of the public. In this case Sergeant Atkinson, Senior Constable Kendjelic, Constable Edward, Constable Hinrichsen, Mr Stewart, Mr Prior, Mr Bowyer and the others of the group named by Mr Stewart; Blake Stewart and Kyle (last name unknown). Blake and Kyle did not remain with Mr Stewart but went back to camp. I am satisfied that police officers are to be regarded as members of the public[1].
[1] (see Ashton v May QDC Skoien SJDC Bundaberg 8th February 2006)
The incident occurred off the road that would be traversed by patrons. It was in the vicinity of a truck parked near the bull pen. It was about 12.30am on the Sunday night of the Mt Garnet races and rodeo long weekend.
Everyone in evidence agreed that the incident occurred very quickly. A cabaret had been held in one part of the rodeo grounds. The evidence appears to be that the cabaret may have closed down at about midnight. The Mount Garnet races and rodeo is held on the May Day weekend and attracts many thousands of visitors many of whom camp for the duration of the events. Having been to the event myself I can say that there is much partying over the duration of the event, with loud music continuing well into the night. People who may have been in the area at that time would likely have been going to or from the cabaret which may have finished a little while before, or to the numerous camp sites set up within the grounds. The evidence would support a finding that there were some other people in the area, those people being friends or acquaintances of Mr Booy. None of them were called to give evidence. I don’t believe there is any evidence of anyone else being in the area at the time the public nuisance offence is alleged to have been committed. The group intercepted by Constable Hinrichsen approached after Mr Booy had been arrested for the public nuisance offence. Mr Stewart gave no evidence of the event interfering with his passage through, or the enjoyment of, the public place. Blake Stewart and Kyle (last name unknown) were not called to give evidence. None of the police officers gave any evidence that the Defendant’s behaviour in any way interfered with their peaceful passage through, or the enjoyment of, the public place.
In the absence of direct evidence, can it be inferred that Mr Booy’s behaviour interfered with or was likely to interfere with the peaceful passage through, or enjoyment of, the place by members of the public. Mr Stewart, Blake Stewart and Kyle (last name unknown) were it would appear part of the group which included Mr Booy. The evidence does not support the finding by way of inference that Mr Booy’s behaviour interfered with or was likely to interfere with their peaceful passage through, or enjoyment of, the place. What about the police officers?
The officers were simply going about their duty. None of the officers gave any evidence of the impact of Mr Booy’s behaviour upon them. Sergeant Atkinson did not give any evidence that he was personally offended or threatened. Senior Constable Kendjelic did make a comment already referred to that no-one likes to be called a liar, but did not give any evidence of the effect of the alleged public nuisance upon him. Constable Edward did not hear the offensive remarks, or any swearing at all, she must not have been aware of the actual events said to constitute the public nuisance. Constable Hinrichsen likewise did not hear or see anything that is said to constitute the public nuisance. Of course it is not necessary that I should find that any of the officers were in fact or did in fact feel insulted or threatened by Mr Booy’s behaviour. I have already found that his behaviour did amount to offensive behaviour. I am not satisfied however, in the circumstances that existed at the time when the public nuisance offence is alleged to have been committed, that it could be inferred that Mr Booy’s behaviour interfered with or was likely to interfere with the peaceful passage through, or the enjoyment of, the public place by any of the police officers. Whilst not condoning drunken or loutish behaviour at these events, Sergeant Atkinson reacted quickly and decisively to arrest Mr Booy in circumstances where a stern warning may have been all that was required. The evidence supports a finding that the confrontation between Sergeant Atkinson, Senior Constable Kendjelic and Mr Booy was in part contributed to by the repeated questioning of Mr Booy about the bottle throwing incident. Mr Booy no doubt affected somewhat by the consumption of alcohol reacted with misguided bravado and rudeness towards Sergeant Atkinson.
There is no evidence that Mr Booy’s behaviour interfered with or was likely to interfere with the peaceful passage through, or enjoyment of, the area by a member of the public.
The Prosecution has failed to establish that Mr Booy’s behaviour did interfere with or was likely to interfere with the peaceful passage through or the enjoyment of the place by a member of the public.
I’m not satisfied that the Prosecution has proved to the requisite standard that Mr Booy, by his actions, committed a public nuisance offence. I therefore find him not guilty of that offence.
OBSTRUCT POLICE
Mr Booy was also charged with obstructing a police officer. The particulars given in respect of this offence were that after being arrested Mr Booy struggled against Police and despite numerous requests to calm down continued to struggle, was handcuffed and restrained. The particulars did not include any allegation that Mr Booy had tried to run from Sergeant Atkinson when informed that he was under arrest. As I have commented on above (paragraph 20), it is difficult to be certain what happened after Senior Constable Kendjelic took Mr Booy by the arm, however Sergeant Atkinson’s involvement appears to have been one of assisting Senior Constable Kendjelic to handcuff Mr Booy, and telling Mr Booy to calm down.
The relevant legislative provisions are found in Section 790 of the Police Powers and Responsibilities Act.
790 Offence to assault or obstruct police officer
(1) A person must not assault or obstruct a police officer in the performance of the officer’s duties.
Maximum penalty—40 penalty units or 6 months imprisonment.
(2) For subsection (1), a person who obstructs a police dog or police horse under the control of a police officer in the performance of the police officer’s duties is taken to obstruct the police officer.
(3) In this section—
assault has the meaning given by the Criminal Code, section 245.
obstruct includes hinder, resist and attempt to obstruct
Mr Magoffin submits that if I were to acquit the Mr Booy of the public nuisance charge there would be no justification for any arrest and if there was no cause for an arrest there could be no obstruction of the police officer as the officer would not be acting in the course of his duties. It is clear that Sergeant Atkinson was a police officer on duty and, subject to the lawfulness of the arrest of Mr Booy acting in the performance of his duties.
To obstruct is to do very little. In Plunket v Kroemer (1934) SASR 124, it was held that a constable was hindered by any obstruction or interference that made his duties substantially more difficult of performance. In Hinchliffe v Sheldon (1955) 3 all ER at 406 it was held that to obstruct means to do any act which makes it more difficult for the police officer to carry out their duty. The Australian Concise Oxford Dictionary defines obstruct as; “close up, fill with impediments, make impassable or difficult of passage; prevent or retard progress of, impede.”
There are two aspects of this matter; one is the lawfulness of the arrest, and the consequences that flow if the arrest was not lawful, the other is whether the facts support a finding that Mr Booy obstructed Sergeant Atkinson.
The Police Powers and Responsibilities Act provides in Section 365 that a Police Officer may arrest a person without a warrant in certain circumstances:
365 Arrest without warrant
(1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons—
(a) to prevent the continuation or repetition of an offence or the commission of another offence;
(b) to make inquiries to establish the person’s identity;
(c) to ensure the person’s appearance before a court;
(d) to obtain or preserve evidence relating to the offence;
(e) to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;
(f) to prevent the fabrication of evidence;
(g) to preserve the safety or welfare of any person, including the person arrested;
(h) to prevent a person fleeing from a police officer or the location of an offence;
(i) because the offence is an offence against section 790 or 791;
(j) because the offence is an offence against the Domestic and Family Violence Protection Act 1989, section 80;
(k) because of the nature and seriousness of the offence;
(l) because the offence is—
(i) an offence against the Corrective Services Act 2006, section 135(4); or
(ii) an offence to which the Corrective Services Act 2006, section 136 applies.
(2) Also, it is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an indictable offence, for questioning the person about the offence, or investigating the offence, under chapter 15.
(3) Subject to the Juvenile Justice Act 1992, section 13, it is lawful for a police officer to arrest a child without warrant if the police officer reasonably suspects the child is committing or has committed an offence.
“When arrest is unnecessary and inappropriately exercised, the consequences “are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting police”. This pattern of escalation is often called the “trifecta.” For example, a person may use offensive language, which results in their arrest and which, in turn, leads them to become angry and resist or assault police. This problem has been particularly pronounced in Indigenous communities where for instance, people are arrested for drinking in a public place. Recently, the High Court discussed public order offences and implied that a certain level of seriousness is required before “offensive” conduct will amount to a criminal offence. The majority also narrowly construed the offence of “insulting words.” The approach of the High Court necessarily places limits on the role of arrest in public order offending. Prior to various changes brought about by the Police Powers and Responsibilities Act, Queensland Police relied heavily on arrest powers since their only other formal alternative was the cumbersome “Complaint and Summons” procedure. Police now have a variety of alternatives available to them which help to minimise the stress associated with arrest.”[2]
[2] Paragraph 2.160 Criminal Process in Queensland-Heather Douglas and Sue Harbidge.
I have considered the decisions of the Queensland Court of Appeal in Rowe v Kemper [2008] QCA 175, and the South Australian Supreme Court in Gaskin v Police [2009] SASC 351.
It would have been lawful for Sergeant Atkinson to arrest Mr Booy if he reasonably suspected Mr Booy had committed or was committing an offence, IF, it was reasonably necessary for one of the reasons listed in Section 365. Public Nuisance is not an indictable offence, nor an offence against Sections 790, or 791 of the Police Powers and Responsibilities Act. It is not an offence against the Domestic and Family Violence Protection Act, or the Corrective Services Act. The Juvenile Justices Act does not apply, Mr Booy being an adult. An act of public nuisance may be of such a nature and of such seriousness to warrant arrest without a warrant, as in the case of a person abusing staff at a hospital. The facts of this case are not such as to justify an arrest under Section 365(1)(k).
Sergeant Atkinson gave no evidence at all to justify the arrest. There is no evidence that the arrest was necessary to satisfy any of the requirements of Section 365(1)(a) to (h). The only evidence that went anywhere near addressing the requirements of Section 365 was that Mr Magoffin asked Sgt Atkinson why it was necessary to arrest Mr Booy to which Sergeant Atkinson replied it was necessary to arrest him because of his behaviour and his aggressive step towards him. The evidence is clear that Mr Booy did not start struggling with Senior Constable Kendjelic until after he had been arrested. The arrest was unlawful.
It is not necessary to give consideration to the second aspect of the obstruct charge; however in case the matter should be reviewed I make the following findings. Sergeant Atkinson informed Mr Booy that he was under arrest for public nuisance. Senior Constable Kendjelic placed his hand on Mr Booy’s arm whereupon a struggle ensued between Senior Constable Kendjelic and Mr Booy causing them to fall to the ground. Senior Constable Kendjelic applied restraining tactics to Mr Booy who continued to struggle while on the ground. Sergeant Atkinson assisted Senior Constable Kendjelic in restraining Mr Booy and having him handcuffed. I believe the evidence is to the effect that Senior Constable Kendjelic placed one of the handcuffs on Mr Booy very quickly and that Sergeant Atkinson placed the other handcuff on Mr Booy after he had taken hold of his arm as described by Senior Constable Kendjelic. Sergeant Atkinson appears to have had a relatively minor role in restraining Mr Booy subsequent to the arrest. The charge of obstruct refers specifically to the obstruction of Sergeant Atkinson. The evidence is that Mr Booy was struggling against Senior Constable Kendjelic and Sergeant Atkinson assisted. Just how Sergeant Atkinson was obstructed I am not entirely sure. I do not regard Constable Hinrichsen’s evidence to mean literally that Sergeant Atkinson was wrestling with Mr Booy on the ground. There is no evidence to support this from any quarter. I interpret all the evidence to mean that after Senior Constable Kendjelic took hold of Mr Booy he reacted, they both ended up on the ground, Senior Constable Kendjelic was attending to handcuff Mr Booy who was struggling, Sergeant Atkinson was standing over them telling Mr Booy to calm down and assisted Senior Constable Kendjelic by taking Mr Booy’s arm and placing the second hand cuff on. While any degree of resistance or struggle against a police officer would strictly amount to an obstruction of the police officer there is insufficient evidence of what is said to constitute the obstruction of Sergeant Atkinson.
The prosecution has failed to establish that Mr Booy obstructed Sergeant Atkinson in that:
1. The Prosecution has not established that Sergeant Atkinson was acting in the performance of his duties when Mr Booy is alleged to have obstructed him, and
2. There is no factual evidence to support a finding that Mr Booy “obstructed” Sergeant Atkinson.
I find the Defendant not guilty of both charges, the Defendant is discharged.
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