Police v Booy

Case [2010] QMC 11

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:

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. EVIDENCE

  1. 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.

  1. SERGEANT ATKINSON

  1. 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.…

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Details
AGLC
Police v Booy [2010] QMC 11
Case
[2010] QMC 11
Decision Date

CaseChat Overview and Summary

The case of Police v Booy involved a dispute regarding the arrest of the defendant, Booy, for public nuisance during a police foot patrol at the Mount Garnet races and rodeo. The evidence presented to the court indicated that police officers were patrolling the event when they noticed bulls being agitated in the bull pen. Upon approaching the pen, officers discovered three men, including Booy, behind a truck. The officers engaged with the men, questioning them about an incident involving a bottle being thrown into the bull pen. Booy denied any involvement and accused the police of lying. The situation escalated, with Booy becoming aggressive and calling the police officer a liar, prompting the officer to arrest Booy for public nuisance. The court had to determine whether Booy's actions constituted a public nuisance and whether the police were justified in arresting him for obstructing their duties.

The key legal issue was whether Booy's actions constituted a public nuisance and whether the police were justified in arresting him. Public nuisance is defined as an act or omission that materially affects the reasonable comfort and convenience of the public. The court considered whether Booy's aggressive denial and calling the officer a liar, coupled with his attempt to leave the area, constituted an obstruction of police duties. Additionally, the court needed to assess whether the police were acting within their duties when they arrested Booy. The court examined the necessity and proportionality of the arrest in relation to the alleged offence.

The court found that Booy's actions did not amount to a public nuisance. The court noted that Booy had not seen the bottle being thrown and was unaware of the incident. The court held that Booy's aggressive response to the police did not constitute a public nuisance as it did not materially affect the comfort and convenience of the public. The court also found that the police were not justified in arresting Booy for obstructing their duties. The court concluded that the police overreacted and that the arrest was not necessary or proportionate given the circumstances. The court emphasised that Booy's actions, while aggressive, did not warrant the use of force and arrest.

The court ordered that Booy be found not guilty of the charges brought against him. The decision highlights the importance of proportionality and necessity in police actions, particularly in the context of public order offences. The court's ruling underscores the need for police to carefully consider the circumstances before resorting to arrest, especially when dealing with individuals who may not be aware of the full context of the situation.

Orders

Orders of the court

Not guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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