Police v Bubbles
[2006] QMC 6
•6 April 2006
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Bubbles [2006] QMC 6
PARTIES:
POLICE
(prosecution)
v
MILO BUBBLES
(defendant)
FILE NO/S:
MAG160240/04(1)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge – Summary hearing
ORIGINATING COURT:
Brisbane Magistrates Court
DELIVERED ON:
6 April 2006
DELIVERED AT:
Brisbane Magistrates Court
HEARING DATE:
6 April 2006
MAGISTRATE:
Payne J
ORDER:
Both charges dismissed and the defendant discharged.
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST PEACE AND PUBLIC ORDER – public nuisance – whether swearing in a public place only heard by police officers is public nuisance - obstruct police – whether police officer not acting in execution of their duty can be obstructed
COUNSEL:
F Herman (sergeant) for prosecution
B Begg (solicitor) for defendant
SOLICITORS:
Prosecution appeared on own behalf
Legal Aid Queensland for defendant
The defendant, Milo Bubbles, is charged:
1. That on 12 September 2004 at Brisbane in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one Milo Bubbles committed a public nuisance offence
and further
2. That on 12 September 2004 at Brisbane in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one Milo Bubbles obstructed a police officer namely David Anthony Dods in the performance of the officer's duties
THE FACTS
At About 9.l0pm on Sunday 12 September 2004, the Defendant, Milo Bubbles, and his wife were walking together through the Brunswick Street Mall, Fortitude Valley. They were walking toward the area of the Brunswick Street Mall Police Beat.
Mr Bubbles, a man of peculiar appearance, was wearing a ripped shirt, a leather studded jacket, tight jeans and boots. His hair was blonde and it was styled or gelled into a single fin or spike of hair said to be a Mohawk.
His wife was also wearing a leather jacket.
Standing in front of the Brunswick Street Mall Police Beat were five police officers; Constables Dods, Hackett and Purcell, Senior Constable Cox and Sergeant Whitehouse.
The five police officers were standing in a group talking or chatting[1] between themselves. Each of the police officers saw Mr Bubbles and his wife as they approached the group. Mr Bubbles was aware the police officers looked in his direction. The police officers were laughing at the time Mr Bubbles approached them[2] and he saw them laughing.
[1] Evidence of Dods Transcript page 3 line 55 "We were just having a conversation amongst ourselves of no real relevance to anything. Just talking about everyday things basically." Two of the Police officers were drinking coffee.
[2] Evidence of Constable Dods Transcript Page 4 line 51 "Okay. Any Laughing?—Yes”
As Mr Bubbles and his wife walked through the group of police officers he said the words "fucking wankers".
After saying the words Mr Bubbles continued to walk in the same direction and at the same pace that he had been walking. Constable Dods called to Mr Bubbles to stop on 2 occasions but he did not stop and continued to walk at the same pace. He did not look back.
Constable Dods followed Mr Bubbles, took Mr Bubbles by the arm and the said:[3]
[3] Transcript Page 3 Line 15
“What did you say? "
Mr Bubbles replied: "Nothing"
Constable Dods said "You're under arrest"
Constable Dods took Mr Bubbles toward the Police Beat and through the main door. Mr Bubbles then started to pull his arm away from the Constable Dods, who then attempted to restrain Mr Bubbles and move him toward the rear of the Police Beat. As they moved through an inner door of the Police Beat Mr Bubbles held onto the door jam.
Mr Bubbles was seated in an interview room but he kept coming to the door and had to be asked to sit down. He swore and yelled at the police but he was "happy" to show Constable Dods his ID. He continued to swear at the Police Officers. He was handcuffed by Constable Dods. He repeatedly hit his own head on the table in the interview room. He was then taken to the watch- house.
Factual Issues in Contention
There is little if any difference between the police officer version of events and Mr Bubble's version.
However, the relevant matters for the court to make a finding are:
1.When Mr Bubbles and his wife approached the police officers in the Brunswick Street Mall, were the police officers laughing at Mr Bubbles or his appearance or did he believe they were laughing at him or his appearance?
2.When Constables Dods called twice for Mr Bubbles to stop, did Mr Bubbles hear Constable Dods?
3.Did any person in the Mall other than the five police officers hear Mr Bubbles say "fucking wankers"?
1. Were the Police officers laughing at Mr Bubbles or laughing at his appearance?
The five police officers who gave evidence all said they were aware of Mr Bubbles approaching them, looked at him as he approached and were laughing as he approached them.[4]
[4] Constable Dods Transcript page 4 line 51 "Okay, any laughing?-Yes ". "All right. Now, the laughing was occurring - where all policeman laughing?--I believe so. Yes" "All right. And this is when Bubbles is in close proximity to you?-Yes, it would be. "
However, each of the police officers said that he was not laughing at Mr Bubbles or his appearance.
Mr Bubbles said he was walking toward the train station to go home.
His evidence is:
"Okay. Now as you were walking toward the Police Beat, do you observe any police officers? - I seen a bunch of them standing out the front, and then they were laughing and like it just looked like they were looking in my direction and laughing............
Okay. And from the reaction of the police officers of what they were doing, what went through your mind? - Just everywhere I go, people laugh at me so therefore I just said "Fuckin wankers”[5]
[5] Transcript page 51 line 53 – page 52 line 7
Further, in cross examination he said:
"What was the reason that you give now for saying it----?-Because I was walking down and then it was like they were laughing at me so of course I'm going to feel something from that.
So, what did you feel?-I was just a little bit angry because people, like -who is anyone to laugh at me and I just thought they laughed at me, so --–
And so, what was the reason for saying `fucking wankers"?---Because they were laughing. "[6]
[6] Transcript page 55 line 2 - 20
Constable Dods conceded Mr Bubbles may have thought the police were laughing at him although he does not accept that they were. Constable Dods said in cross-examination:
"All right. Would it be fair to surmise that a person might think that you're laughing at he or she?-Perhaps. But I'm sure the person's got probably - could think of other that police officer could be laughing at. He's obviously a bit concerned that - the way he looks they must be funny. "[7]
[7] Transcript page 10 line 5 - 10
I consider Mr Bubbles to be an honest witness and his assumption reasonably available to him on the information he had.[8] That is, I do not find that the police officers were laughing at him, but that I accept that he believed the police officers were laughing at him as he walked down the Brunswick Street Mall toward them. This made him "a little bit angry”[9] and I accept it is because of his perception that the police officers were laughing at him that he said the words "fucking wankers".
[8] He is of peculiar appearance, he wore his hair in a single fin of hair styled into a Mohawk and dyed blonde. He wore tight jeans, a ripped shirt, a studded leather jacket and boots. People had previously laughed at him because of his appearance. He had seen the police officers looking in his direction and laughing as he approached them.
[9] Transcript page 55 line 14
2.When Constable Dods called twice for Mr Bubbles to stop, did Mr Bubbles hear Constable Dods?
After Mr Bubbles said the words "fucking wankers" he kept on walking at the same pace and in the same direction away from the Police. Constable Dods called twice to Mr Bubbles the word "stop" but Mr Bubbles did not stop until Constable Dods took hold of him by the arm.
Mr Bubbles said that he did not hear Constable Dods say the-word "stop". Mr Bubbles said:
"I didn't hear them, otherwise I would have stopped.”[10]
[10] Transcript page 53 line 18
I accept the evidence of Mr Bubbles that he did not hear the police officer tell him to stop before Constable Dods took him by the arm. Mr Bubbles was honest and candid when he gave evidence. Generally his evidence was similar to that of the police officers. The evidence of the police officers as to what Mr Bubbles did after saying the words is consistent with a person not hearing the words, in that he continued walking at the same pace and there was no evidence of any action or comment by Mr Bubbles that would suggest he heard the police officer.
3.Did any person other than the police officers hear the words?
There is no evidence upon which 1 could be satisfied that anyone other than the five police officers heard the words said by Mr Bubbles. The evidence of the police officers was that people were in the Mall but no evidence that they actually saw or aware of any person who overheard it or were aware of any person in the vicinity of Mr Babbles when he said the words who was likely to have overheard the words.
Constable Dods said in cross-examination:
"What interference did Mr Bubbles cause to members of the public on this particular occasion? – None”[11]
[11]Transcript Page 11 line 49
Constable Cox said:
"...... There was no-one else around.
So there's only police?-That is correct.”[12]
[12] Transcript page 18 line 8
Constable Dods repeated the words in his evidence to show the volume of the words and the volume was at usual or just above usual conversational level. Constable Dods said Mr Bubbles said the words in a "clear" voice.[13] He was then asked if Mr Bubbles yelled it out and he said:
[13] Transcript page 3 line 11
"No, he didn't yell it out.”[14]
[14]Transcript page 6 line 35
Constable Cox said:
"As I've just said, he was glancing from side to side. There were no other persons around, so when I say, "turn toward us", I mean the group of police.”[15]
[15] Transcript page 17 line 3
The police officers did give evidence that there were people moving up and down the Brunswick Street Mall but could not recall anyone particular person close enough to hear the words.
On the evidence I cannot be 'satisfied that anyone other than the police officers heard or was likely to hear Mr Bubbles say the words "fucking wankers".
THE LAW
PUBLIC NUISANCE
Section 7AA of the Vagrants, Gaining and Other Offences Act 1931[16] (the Act) provides:
[16] The Act
(1) A person must not commit a public nuisance offence.
(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 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
(5) … … …”
In this case it was submitted that the defendant Mr Bubbles committed a `public nuisance' offence in that he behaved in an offensive way by using offensive language and this behaviour interfered or was likely to interfere with the peaceful passage through, or enjoyment of, a public place by a member of the public.”[17]
[17] Section 7AA(2)(a) (ii) and Section 7AA(2)(b) and Section 7AA(3)(a) of the Vagrants Gaming and Other Offences Act 1931
There is one element of the offence easily dealt with and that is that the place where the words were said, the Brunswick Street Mall, I find was a `public place' for the Purposes of the VGOO Act.
Further, I am satisfied that police officers are members of the public and capable of being offended by the behaviour of others.[18] However, it is relevant that the only person who heard the words were police officers.
[18] DPP v Orum [1998] Crim LR 848 and Burns v Seagrove [2000] NSWSC 77 (23 February 2000) See also Green v Ashton [2006] QDC 008 per Skoien DCJ
In DPP v Orum[19] the English Divisional court noted:
"words and behaviour [of this kind] would be wearily familiar to police and have little emotional impact save that of boredom."
[19] DPP V Orum (supra)
In Coleman v Power[20] although considering the now repealed section 7(i)(d) of the Vagrants Gaming and Other Offences Act, Gummow and Mayne JJ said:
“… the bare use of words to a police officer which the user intends should hurt that officer will not constitute an offence. By their training and temperament, police officers must be expected to resist that sting of insults directed to them."
[20](2004) 78 ALJR 1166 at paragraph 200
And Kirby J said at paragraph 258:
"at least 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. "
The question for me is whether the use of the words, "fucking wankers", was an offence under section 7AA of the VGOO Act.[21]
[21]Couchy v Birchley [2005] QDC 334 paragraph 31
This question in this case has 2 limbs:
1. Were the words offensive, obscene, indecent or abusive?
and
2. Did the defendant's use of the words interfere or was likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public?
1.Were the words offensive obscene indecent or abusive?
Contemporary community standards
It has not been argued that the words were obscene, indecent or abusive but that they were offensive. The test for whether the words were offensive[22] is an objective test to be applied in accordance with contemporary community expectations.[23]
[22] or obscene or indecent or abusive
[23]Couchy v Birchley (supra) at page 10 paragraph 36 and see Del Vecchio v Couchy [2002] QCA 9
The court's finding merely "represents an expression of contemporary community standards accepted by ordinary decent minded citizens."[24]
[24]Donnelly v McDonald (1989) 12 Qld Lawyer Reps 111 per Wylie DCJ
Whether the conduct offends community standards is to be assessed in light of the Court's view of community standards, not the view of a particular witness.[25]
[25] E (A Child)
In Regina v Suckling [1999] NSWCCA293 116 A Crim R 198 Adams J stated:
"In R v Suckling [1999] NSWCCA 36 this court considered the application of R v Swaffield and Pavic (1997-98) 151 ALR 98 where the High Court of Australia applied a community standards test to the admissibility of evidence obtained by subterfuge. The court pointed out
"that the reference by the High Court, as by this Court, to the community standards in this respect is not any notion of populist public opinion. Rather, this refers to community standards concerning the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement. "
The meaning of community standards, in any particular legal context, is a question of law; whether the application to the circumstances of a particular case produces a particular result may be regarded as a question of fact. Community standards in this context are not the same as popular opinion or vulgar prejudice: they are the expression of standards that reflect the fundamental values of our society so far as the application of the criminal law is concerned, including, as particularly relevant here, the principle of equality before the law or equal justice. "
Accordingly, the assessment of offensiveness sufficient to justify a criminal prosecution is an assessment of fact to be made by me according to my assessment of what is acceptable to the community. This latter consideration being a question of law.
In Birchley v Couchy (supra) McGill DCJ said at page 12:
"The application of current community standards in the relevant context and circumstances is a matter for the magistrate, to determine as a question of fact.”[26]
[26]See also Bradbury v Staines, ex parte Staines [1970] Qd R 76 at page 91 per Barwick CJ
Context and Circumstance
Further, when considering the community standard the court must have regard to context and circumstances in which the words were used. In Edbrooke v Hartman [191] QDC 15 at page 5 Wylie QC DO said:
"However they do contain certain observation or comments of mine which emphasize the need to always bear in mind that part of the legal test requires determination of the context and circumstances in which the impugned language was used and of course the community standard in regard to the use of such language in that context and those circumstances. There is no prescribed list of statutorily verboten words. The community standard is not an immutable one, fixed from a past era; it is the standard at the time the language is used. .........As the tribunal of fact, the stipendiary magistrate had to, and now on these appeals I must, identify the relevant community standard and that must be done beyond reasonable doubt. The benefit of any doubt as to, or difficulty in divining, the current community standard as to the use of a word or of words in the relevant context and circumstances must, as a matter of law, be given to the defendant. "[27]
[27] See also Donnelly v McDonald (supra) at page 119 Wylie QC DCJ "Thus the question of indecency must be judged in light of the time, place and circumstance.”
In Coleman v Power[28] the Chief Justice of the High court said:
"Concepts of disorderly or indecent or offensive vary with the time and place and may be affected by the circumstances in which the relevant conduct occurs."
[28](supra) at page 1170
Are there any word or words that are intrinsically offensive?
The cases clearly state that there is no word or list or words which is intrinsically offensive.[29]
[29] Edbrooke v Hartman (supra) Wylie QC DCJ at page 4 "There is no list of statutorily verboten words"
In Hortin v Rowbottom[30] Mulligan J said:
"The first principle established by these cases is that the words used by the appellant in the present case are not necessarily indecent. The learned special magistrate decided that the word `fuck", and presumably its variations and derivatives, is necessarily indecent regardless of context. That is an error of law and whether the words the appellant in context, are indecent must be determined on appeal. It is clear that the appellant did not use the allegedly indecent words in their primary sense. He was using them as "intensives" or "expletives" and to give emphasis to the message he was seeking to convey. In my view, the language of the appellant was certainly coarse and I expect it would be offensive to, and regarded as indecent by, some sections of the community. However, I do not think that these days it would satisfy any of the tests which are set out in the cases. Such language is now commonly used in ordinary conversation by both men and women in many sections of the community, sometimes in the primary sense but more often in its secondary sense, without offending contemporary standards of decency."
[30] (1993) 68 A Crim R 381 at page 389
The words said by Mr Bubbles were “fucking” and “wanker”.
In Dalton v Bartlett[31] the Full Court of South Australia held:
"The primary purpose of language is to convey a message to others. It seems that the decency or otherwise of language used on a particular occasion must depend upon the meaning which it conveys, rather than upon the form of language when divorced from its meaning."
[31][192] 3 SASR 549
And
"I should say, however, that there appear in the learned magistrate's reasons for judgment strong indications that he held the same opinion pronounced erroneous in Romeyko v Samuels that words like those in question must necessarily be indecent in all contexts at least when, uttered in a public place. In that case I said: `in my view, it is equally erroneous to hold that the common four-letter words are necessarily indecent in every context. (Bradley v Staines [1970] Qd r 76), and to hold that they can never be, indecent at all. ' "
Mr Bubbles said the word "fucking". That word or its derivatives has been considered in many ease under similar legislation to what I am considering.[32]
[32] Edbrooke v Hartman (unreported) QDC 15 of 1991 considered the words "and fuck you cants too" was not in that case obscene. See also Singh v Duncan (unreported) QDC 34 of 1990
In the decision of Anderson[33] an appeal from a Police Tribunal hearing by Herron DCJ concerned a police officer using the word "fuck" and it's derivatives within the hearing of a police foyer. Meagher JA said:
"Without coming to any conclusion on the question the trial judge commented that the words used by the opponent are probably not offensive'. I would agree with his Honour. Undoubtedly the behaviour of the opponent was unchivalrous and unbecoming of the office he occupies. This is, however a long way form the language he used being offensive in any legal sense....
There was no evidence that persons in the public area were offended, nor that the public area was frequented by gentle old ladies or convent school girls. Bearing in mind that we are living in a post-Chatterly, post- Wolfenden age, taking into account all circumstances, and judging the matter from the point of view of reasonable contemporary standards I cannot believe Sergeant Anderson's language was legally `offensive'.
[33]NSW Unreported CCA CA40469/95
Was the Behaviour such that it merited punishment by the Criminal Law?
Authorities on similar sections say that the impugned behaviour must warrant the interference of the criminal law.
In Dillon v Byrne (1972) Vol 66 QJPR 112 at 133 (citing Purvis v Inglis (1915) 34 NZLR 1051-1053):
"Disorderly conduct is conduct which is disorderly; it is conduct which, while sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more - it must in my opinion, tend to annoy or insult such persons as are faced with it - and sufficiently deeply or seriously to warrant the interference of the criminal law."
In Barrington v Austin & Oths [1939] SASR 130 at 132 Napier J said:
"...I have no doubt that these words `disorderly behaviour', refer to a substantial breach of decorum which tends to disturb the peace or interfere with the comfort of other people who may be in, or in the vicinity of, the street or public place."
In Donnelly v McDonald (1989) 12 Qld Lawyer Reps Wylie DCJ said:
s 7(1)(e): "is intended to strike at conduct which is lewd or prurient or involves moral turpitude, conduct in the form of some intentional bodily act. The offence is not concerned with conduct which is merely unseemly or in bad taste. And it must be conduct such as to merit punishment by the criminal law."
2. Did the Defendant's use of the words interfere or were likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public?
Section 7AA provides that to commit a public nuisance the behaviour must not only be offensive but that it must interfere or be likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public.
In Butterworth v Geddes[34] Forde DCJ said:
"If only one of the persons in the street was to have his or her enjoyment interfered with by the conduct of the appellant whilst that person was in the street, then the element of the offence is established. It is able to be inferred from the nature of the conduct that it was likely that the appellant's conduct did interfere with the peaceful passage through or enjoyment of anyone passing by or hi the street at the material time. "
[34] (Unreported) QDC 13 October 2005 page 7
In McLennan v McLennan[35] McGill DCJ stated:
"...Likely" in my view does not in the statute mean more probable than not, but it must at least involve a real, not remote likelihood, something more probable than a mere chance or risk."
[35] [2003]QDC 398
In Birchley v Couchy[36] McGill DCJ said:
"In the absence of evidence of an actual verbal response, however, in my opinion it would be open to the tribunal of fact to be satisfied as a matter of inference that the particular behaviour was likely as a matter of inference that the 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 place only for the purpose of pleasure, as distinct from people who are in there in the course of some business or occupation, or for some other specific purpose"
[36] (supra) page 14
APPLICATION OF THE LAW - PUBLIC NUISANCE
The time and place of the impugned behaviour occurred at 9.10pm on a Sunday night as Mr Bubbles and his wife were walking through the Brunswick Street Mall, Fortitude Valley. As Kings Cross is to Sydney, St Kilda is to Melbourne then Fortitude Valley is to Brisbane. The Brunswick Street Mall is a place of night time activity which can include the seedy side of life. There is public drinking, drug use and drug transactions, prostitution and criminal behaviour. It is also a place of regular nightlife of nightclubs, restaurants and brightly lit take away food places. It is a place where expletives would be likely to be used more regularly in common speech than in Brisbane suburban malls. Constable Dods said:
"No, because being that we work in The Valley we - we're quite accustomed to seeing odd people in there."[37]
[37] Transcript page 10 line 17
Further I have found that only persons who heard the words were the five police officers. They had worked together in Fortitude Valley for a number of years. I consider the hearing of the words said by Mr Bubbles would be wearily familiar to the five police officers. I have no doubt they would have heard much worse whilst working in Fortitude Valley.
When Mr Bubbles said the words he believed the police officers were laughing at him. They have each said they were not laughing at Mr Bubbles and I cannot make a finding that they were. Accordingly, I will give no weight to Mr Bubbles' belief the police officers were laughing at him when deciding if the words were objectively offensive other than it gives an explanation for his behaviour but no more.
The words said by Mr Bubbles were "fucking wankers". The word "wanker" has never been a vile or deeply offensive word. It has fallen from common parlance. It has been many years since Australians were entertained by the Paul Hogan character `Leo Wanker'.[38] It was used by Mr Bubbles with its slang meaning of fool or idiot or contemptible and not with any primary sexual meaning.
[38]Or for that matter Luigi the Unbelievable, Perc the Wino or Sergeant Donger
Mr Bubbles also used the word `fucking'. The word fucking is not always considered to be offensive. It was used here as an intensive or expletive and I consider it adds nothing to the word `wanker,' as it was used by Mr Bubbles.
When applying an objective test and considering the words `fucking wanker' and applying contemporary community standards I do not consider the words in the context and circumstances they were used to be offensive. Nor do I find the words to be obscene, indecent or insulting.
I do not consider that the use of these words by Mr Bubbles required the interference of the criminal law.
Further, even if the five people who heard the words were not police officers and were five civilians standing in the Brunswick Street Mall and Mr Bubbles directed the words to them I do not consider the words to be offensive, obscene indecent or insulting by contemporary community standards. Mr Bubbles did not say the words because the group of five were police officers but because he believed they were laughing at him. Mr Bubbles was involved in a mild form of protest, whether he was mistaken or not. It can be noted the police officers mistakenly believed Mr Bubbles said the words to them because they were police officers, but he did not.
Conversely, when applying an objective test, even if Mr Bubbles said the words to the five police officers for no other reason[39] then that they were police officers or for no apparent reason, I do not consider the words by contemporary community standards to be offensive, obscene, indecent or abusive.
[39] The police officers mistakenly believed Mr Bubbles said the words them for no reason or because they were police officers. Constable Dods said "..he's turned to me and said 'fucking wankers "for no apparent reason." Transcript page 5 line 47. Constable Cox said: "They were directed toward the group and the uniform I was wearing." Transcript page 19 line 50
Secondly, to contravene Section 7AA of the VGOO Act the person's behaviour must interfere or be likely to interfere with the peaceful passage through or enjoyment of the public place by a member of the public.[40] There is no doubt the police officers were enjoying the public place. Their evidence was they were chatting, enjoying a laugh and a couple were drinking coffee. This was being done in the context of them working.
[40]Section 7AA(2)(b) The section also refers to the `peaceful passage through of a public place', but that is not relevant here.
Mr Bubbles moved through the group of the police officers at a normal walking pace and hunched shoulders as he said the words. I cannot see how the police officers enjoyment of the Brunswick Street Mall whether that be the social aspect of their interaction or the work aspect of their interaction was interfered with for the purpose of section 7AA. There was almost no time for any interference, he was arrested almost immediately. I cannot even infer that the use of such words for the purposes of a section which creates a criminal offence were likely to interfere with the police officers enjoyment of the Brunswick Street Mall. The momentary sting of a low level insult is not the type of interference the section contemplates. It must be an interference or likely to be an interference which would meet with the disapproval of well conducted and reasonable men and women and further it must be interference of the enjoyment of the public place or likely interference of the enjoyment of the public place sufficiently deeply or seriously to warrant the interference of the criminal law.[41]
[41] Dillon v Byrne (supra)
These words would be wearily familiar to police and have little impact save that of boredom. Further considering the nature of the words said and how they were said I do not consider they would interfere or be likely to interfere with a person’s enjoyment of the Brunswick Street Mall even if they were not a police officer.
CONCLUSION - PUBLIC NUISANCE
Accordingly for the purposes of section 7AA of the VGOO Act I do not find beyond a reasonable doubt that Mr Bubbles behaved in an offensive way, nor do I find that his behaviour interfered or was likely to interfere with the peaceful passage through or enjoyment of the relevant public place by a member of the public.
The charge of Public Nuisance is dismissed and the Defendant, Mr Bubbles, is discharged.
OBSTRUCT POLICE
Section 444 of the Police Powers and Responsibilities Act 2000 (PPRA) provides:
"(1)A person must not assault or obstruct a police officer in the performance of the officer' duties."
Section 198 of the PPRA provides:
“(1)It is lawful for a police officer, without a warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence 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 a person's appearance before a court;
(d) to obtain or preserve evidence relating to an 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 444 or 445;
(j)because an 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 2000, section 103(3);
(ii)an offence to which the Corrective Services Act 2000, section 104 applies.
(2)Also, it is unlawful for a police officer, without a 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, under Chapter 7. "
In Couchy v Birchley[42] his Honour Judge McGill, as here, was considering an offence of obstruct police and the necessity of the person to have been lawfully arrested. Similarly, His Honour was considering an offence of public nuisance pursuant to section 7AA of the VGOO Act and Section 198 of the PPRA, McGill DCJ said:
"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."
[42] (supra) at page 18 paragraph 63
And further, his Honour said:[43]
"It is however, unnecessary for me to consider the matter further. If what was 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 at the time in fact reasonably necessary for the arrest to be affected for one or more of the reasons, there was simply no evidence from any source of that."
[43] Page 17 paragraph 59
In Coleman v Power[44] McHugh J said:
[44] (2004) 209 ALR 182 at [para] 124
"Each of the sub-sections under which the appellant was charged is predicated on the lawfulness of the action being resisted or obstructed. It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing. In Re K, after reviewing the authorities on the scope of an officer's duty, the full court of the Federal court said:
"The effect of all of those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.”
An officer who unlawfully arrests a person is not acting in the execution of his or her duty ....... "
McHugh J continued:[45]
"These authorities show that once the conduct of an officer is unlawful, the level of physical response offered by an accused is irrelevant to a charge involving the "execution of duty" or "performance of duty".
[45] [para] 124
Further cases have held that an arrest is unlawful if a person is not told of the reason for the arrest in circumstances were not such that he would have known the reason for his arrest and it was not practicably impossible to have informed him.
In Hortin v Rowbottom[46] Mulligan J stated:
"Of course, it is well recognised that the failure to inform a person of the reason for the arrest does not render it unlawful if the circumstances are such that he must know the general nature of the alleged offence for which he is detained and he produces the situation which makes it practically impossible to inform him of the reason for the arrest: see Christie v Leachinski, per viscount Simon (at588). Whilst the incident involving Constable Muir and the appellant was only a brief period of time, there was sufficient time for the appellant to ask why he was being arrested and for that information to be given to him. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... I do not think the appellant would have known the reason for his arrest and it was not practicably impossible to inform him of the reason for his arrest. Consequently it was not established that is arrest was lawful............ it is not the resistance of a police officer which constitutes the offence, but "what the police officer is doing or attempting to do - namely the execution his duty ". As the arrest was not proved lawful, the appellant did not resist Constable Muir in the execution of any relevant duty and this charge was not proved beyond reasonable doubt. "
[46] (supra) at page 390
Further, the power to arrest without warrant is an interference with a person's liberty and so has always been subject to stringent limitations.[47]
[47] Clark v Bristow (unreported) QDC 37 of 2000 per Hoath J
The meaning of `obstruct' has been said to mean making it more difficult for the policy officer to carry out his duties.[48]
[48] See Hinchliffe v Sheldon [1997] QB 498
APPLICATION OF THE LAW - OBSTRUCT POLICE
The case of `obstruct police' against Mr Bubbles was not particularised.
The prosecutor's submissions with respect to the `obstruct police' charge relate to Mr Bubbles behaviour inside the Police Beat.
The prosecutor Sergeant Herrmann said:
"And he clearly has accepted that he obstructed them in going into the back of the mall post by grabbing hold of the doorjamb and not allowing them to go through.”[49]
[49] Transcript page 69 line 25
Accordingly, it is the behaviour after he was arrested which the prosecution say constitute the offence of `obstruct police', more particularly the holding onto the door jamb.
After Mr Bubbles was arrested in the Brunswick Street Mall, he was taken inside the Police Beat where he grabbed hold of a door jamb as he was being taken to an interview room. He also repeatedly got up from his seat and came to the door of the interview room he was in and yelled and swore at the police officers. He also hit his own head against a table. This latter behaviour was not relied upon by the Prosecutor to be part of the behaviour which constituted the offence of obstruct police.
However, before I consider whether or not this behaviour amounted to an obstruction, I will first consider another element of the offence in section 444 of the PPRA. To constitute an offence the police officer must acting "in the performance of the officer’s duties".
In cross-examination, Constable Dods, the police officer who arrested Mr Bubbles was asked why he had arrested Mr Bubbles. He said:[50]
[50] Transcript page 6 line 40
"So that the use of expletives by him has induced you to apprehend him?-Yes.
All right. Could you tell us under what provision of what Act you took that course of action?-Under the Police Powers and Responsibilities Act.
And what section's that?-I believe section 198.
Mr Bubbles has issued these word, has walked on with his wife. Did you consider any other alternatives were open to you rather than the power of arrest? - I can't say offhand. No
Well, you've heard of Notices to Appear, haven't you?-- Yes.
All right. Would you agree with me if I were to say to you that arrest is a rather serious step for a police officer to take?----Yes.… … … … …
Well I'm asking you to either agree or disagree. You think it's a serious step for an offence of this nature?-----Basically the reason he was arrested and taken to the watch-house was because the way he carried on the back of the Police Beat, I don't believe I would be able to issue him with a notice to appear because he------
No, no, no, no, no, no, no, no. You've already arrested him on the street?- Mmm.
Do you consider there was any alternative steps that you could've taken rather than the arrest of a person? No. Well, no. Because he wasn't listening to me at first. If- may ---perhaps if he stopped then, listened to me straight away. "
Clearly Constable Dods was relying on the legislative provision in section 198 of the PPRA to arrest the defendant.
Constable Dods believed Mr Bubbles had committed a simple offence of public nuisance. He could not rely on section 198(2) to arrest Mr Bubbles without a warrant to question or investigate an offence as that provision is only for the commission or suspected commission of an indictable offence.
Constable Dods must rely on section 198(1) for his power to arrest Mr Bubbles.
Therefore, on the evidence of Constable Dods, Mr Bubbles was arrested on the street for using the expletives and not listening to Constables Dods `at first'. There is no evidence from the arresting officer, Constable Dods, which he was purporting to exercise the power to arrest for any of the reasons under subsection 1.
The only sub-sections which could even remotely be considered in this case are section 198(1)(a) - (c) and (i) and {j). Sub-sections (d), (f) and (j) - (1) could not apply in the circumstances of this case.
Sub-Section (1)(a) says a person can be arrested without a warrant if it is reasonably necessary to prevent the continuation of an offence or repetition of an offence or the commission of another offence. This was clearly not the situation here. In fact, when Mr Bubbles was invited to repeat the words again at the invitation of Constable Dods, that is, as far as Constable Dods was concerned, to commit the offence again, Mr Bubbles refused. It could not be said he was continuing the offence nor intended to commit another offence. All he did was say `nothing' and he was immediately arrested. Even though he did not hear constable Dods say the word `stop' he still stopped when Constable Dods put his hand on his arm. He also answered Constable Dods when Constable Dods spoke to him. Mr Bubbles had walked about 5 paces after saying the words when Constable Dods put his hand on his arm. He stopped and spoke. He was then immediately arrested. There is no evidence he was about to commit another offence. There is no benefit even hypothesising on other possible scenarios as to why he may have been arrested as Constable Dods gave evidence of why he arrested Mr Bubbles. As he was the arresting officer that must be relied upon.
Further, subsection (1)(b) provides for arrest to establish a person's identity. There was no evidence of this before his arrest and it was said that at the police beat he was `happy' to show the police officer his ID.
Subsection (1)(c) provides for arrest to ensure a persons attendance before the court but there is no evidence this was the reason for the arrest of Mr Bubbles in the Brunswick Street Mall.
Subsection (1)(g) provides for arrest if it is reasonably necessary to preserve the safety or welfare of any person including the arrested person. Any concern for Mr Bubbles' welfare was after he was arrested inside the Police Beat and cannot be relied upon as to why he was arrested in the street.
Subsection (1)(h) could not be relied upon as Mr Bubbles was not fleeing Constable Dods. Constable Dods said stop twice,[51] put his hand on Mr Bubbles, spoke to Mr Bubbles who answered him and he was immediately arrested. There is no suggestion whatsoever he was fleeing Constable Dods or the scene.
[51] Although Mr bubbles did not hear him say `stop'
Subsection (1)(i) allows for arrest for an offence against section 444. This is clearly not why he was arrested. Mr Bubbles is said to have obstructed the police officer after he was arrested and when he was inside the Police Beat.
Accordingly, the legislative provision to arrest Mr Bubbles is section 198 of the PPRA. None of the reasons provided in that section which allow for arrest without a warrant have been met. Constable Dods had no power to arrest Mr Bubbles for the simple offence of public nuisance.
Further, there is no evidence that Constable Dods told Mr Bubbles why he was arrested and there was ample opportunity for Constable Dods to tell him why. This was not a case where Mr Bubbles knew what he did was wrong. To the contrary, he, like me, did not think he had done anything wrong.[52] The failure by Constable Dods to tell him why he was arrested means also that the arrest was not lawful.[53]
[52] Transcript page 53 line Mr Bubbles said: "Then he tried to tell me - trying to pull me inside the police beat and I didn't even know I did anything wrong."
[53] Hortin v Rowbottom (supra)
Accordingly, the conduct of the police officer, Constable Dods, from when he arrested Mr Bubbles and thereafter, was unlawful. The behaviour of Mr Bubbles after that time is irrelevant because the prosecution has failed to prove an element of the offence that is that Constable Dods was acting in the performance of his duties.[54]
[54] Coleman v Power (supra) per McHugh J
CONCLUSION - OBSTRUCT POLICE
The arrest by Constable Dods was not lawful and so he was not `acting in the execution of his duty'. Therefore, an element of the offence pursuant to section 444 of they PPRA is missing and Mr Bubbles cannot be said to have committed the offence of obstructing police.
I will, however, for the sake of completeness consider whether the behaviour of Mr Bubbles amounted to an offence of obstruct police if the arrest by Constable Dods was lawful. The evidence is that Mr Bubbles was arrested and presumably taken by the arm to the Police Beat. Once inside and as he was being taken to the back of the Police Beat he pulled his arm away from Constable Dods and held onto a door jamb. He was then taken to the rear of the Police Beat to an interview room where he became verbally aggressive and kept coming to the door and had to be told to sit down. He was then handcuffed and he started to hit his own head on the table.
The Prosecutor has submitted it is the behaviour of Mr Bubbles holding onto the door jamb, which constitutes the obstruct police offence. However I do not consider that once arrested citizens must in all circumstances necessarily be passive and compliant. In this case, Mr Bubbles was not told why he was arrested and did not think he had done anything wrong and was now being deprived of his liberty. His behaviour inside the Police Beat must be seen in that context. Surely, he must be able to challenge the police officers conduct toward him in those circumstances. It would be natural to do so. There is no evidence to suggest that was any more than a short moment in time. The pulling away of his arm and the holding of a door jamb must be within the bounds of acceptable or foreseeable human behaviour in such a circumstance. It is inherently unbelievable that people would surrender their liberty without knowing why and not put up some challenge. It is matter of commonsense a person may react in the way Mr Bubbles did. This was a very short and minor glitch in the event of he being taken to an interview room and Constable Dods was clearly able to continue with his duties. Even though I have said the charge of obstruct must fail for the reasons I have given, I can also say that I have doubt whether Mr Bubbles behaviour obstructed in a criminal way Constable Dods performing his duty even if he was lawfully conducting his duty. There must be some real obstruction or hindrance or difficulty in the police officer carrying out his duty to warrant the sanction of the criminal law. Even if the arrest had been lawful and Constable Dods was `acting in the execution of his duty', I would not be satisfied beyond a reasonable doubt that Mr Bubbles behaviour in the circumstances of this case would amount to obstruct police. This does not mean that such behaviour in different circumstances may not constitute an obstruct police charge if the person was lawfully, arrested.
Unfortunately particulars were not sought at the beginning of the trial and even though it was not submitted by the Prosecutor that Mr Bubbles yelling and swearing, getting up from his seat and hitting his own head on the table constituted the obstruct police charge I will also mention it, again for completeness, in this context. Even though Mr Bubbles may have used more decorum in the way he went about it, he was clearly aggrieved.[55] I do not think such behaviour obstructed the police officer in performing any duty. Constable Dods did not say what he was doing inside the Police Beat, even if he was inside the Police Beat the whole time, when Mr Bubbles was yelling, getting up and hitting his own head. The swearing and getting up from his chair may have been annoying or frustrating to the police officer but there was no evidence that the Police Officer was obstructed in going about his duty. Quite the contrary, Mr Bubbles was handcuffed, so it seems he could easily go about his duty. There is no evidence from which I could even draw an inference he was hindered in going about his duty. Further, Mr Bubbles hit his own head on the table. That may have been worrying to the police officer, especially as Mr Bubbles told the police officer he had schizophrenia.[56] In fact, the police officer said he was concerned for Mr Bubbles and took him to the watch-house for his own safety. But again, there is nothing to suggest the police officer was not able to go about his duty.
[55] Transcript page 53 line 56 Mr Bubbles said: "I wasn't very happy because I didn't do anything wrong, I didn't think I "did so - and they were just dragging me in there."
[56] Mr Bubbles also gave evidence of this, he said "Do you regularly beat your head on a table or wall? - Yeah, when I hear too many things in my head I just bang my head against the wall until it stops. " Transcript page 54 line 11
However, I have already found for the reasons I have given above, Constable Dods was not acting in the performance of his duties. Accordingly an element of the offence of Section 444 of the PPRA has not been proved.
The charge of Obstruct Police is dismissed and the defendant, Mr Milo Bubbles, is discharged.
Constable Cox page 13 line 33-36
Constable Purcell Transcript page 26 Lines 20 - 50r
Transcript page 51 line 53 - page 52 line 7
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