Police v Strickland

[2012] QMC 3

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Strickland [2012] QMC 3

PARTIES:

POLICE

(prosecution)

v

LESLIE CALVIN STRICKLAND

(defendant)

FILE NO/S:

MAG56560/11(4)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge

ORIGINATING COURT:

Magistrates Court at Mareeba

DELIVERED ON:

6 February 2012

DELIVERED AT:

Mareeba

HEARING DATE:

3 November 2011, 4 November 2011

MAGISTRATE:

Braes TJ

ORDER:

Charge dismissed, defendant discharged.

CATCHWORDS:

CRIMINAL LAW – OFFENCES AGAINST PEACE AND PUBLIC ORDER – what constitutes public nuisance – adequacy of particulars

Summary Offences Act 2005 (Qld), s 6

COUNSEL:

Armitage (senior constable) for prosecution

Veschetti (solicitor) for defendant

SOLICITORS:

Prosecution on own behalf

1. Offence -Section 6 Summary Offences Act 2006 commit public nuisance.

1. Leslie Calvin Strickland has pleaded not guilty to one charge of committing a public nuisance offence.

1. In order for me to find Mr Strickland guilty of the charge I must be satisfied that all the elements of the charge have been proven 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 Strickland of the charge.

1. At the commencement of the hearing Ms Veschetti, solicitor representing Mr Strickland, confirmed the elements of date, time and place were admitted.

1. Ms Veschetti said the issue to be determined by me would be one of identity, Mr Strickland denying he was the person responsible for the acts complained of.

1. At the conclusion of the hearing I was provided with a letter of 2 November 2011 written by Senior Constable Sharron Armitage who prosecuted this matter setting out particulars of the offence charged. Those particulars identify the relevant provision of the legislation as Section 6 of the Summary Offences Act 2006. The time date and place were particularised as “between 0030 HRS - 0130 HRS, 1 January 2010, Byrnes Street Mareeba in the State of Queensland”.

1. The following further particulars were provided –

“It will be alleged that at the abovementioned time, date and place the defendant Strickland behaved in a manner which constituted a public nuisance by using obscene language, by acting in a threatening manner and acting in a violent manner and such other matters as may on the evidence in the opinion of the court constitute public nuisance.”

These acts are then further particularised with reference to the evidence.

“It will be further alleged that defendant Strickland was seen and heard by numerous witnesses including police officers punching his chest, yelling to Aboriginal men to come and fight him using words to the effect of “come on cunts, come on” and “fuck off I’m going to kill those cunts”. Strickland was observed fighting Aboriginal men and pushing an Aboriginal person in the chest. Strickland also told police officers “fuck off cunt”.

1. No objection was taken at the commencement or throughout the hearing as to the adequacy of the particulars given. The particulars have a passing resemblance to the evidence. The particulars do not address the second limb of s 6 at all, that is a requirement that Mr Strickland’s behaviour also interfered, or was likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

1. As no objection was taken to the particulars and as Mr Strickland was legally represented throughout the hearing I am satisfied that the inadequacy of the particulars did not so prejudice Mr Strickland as to make the trial itself an unfair one.[1] The lack of particulars and the overall confusing nature of the evidence has caused me some problems in determining this matter.

   [1] See Jago v District Court (NSW) [1989]168CLR 23, Dean J at 59. 5. The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g. adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one.

1. Although I have determined that the lack of particularity contained in the particulars given did not unduly prejudice Mr Strickland in obtaining a fair hearing of the matter the extent of the particulars given will impact upon those incidences which might have been regarded as constituting an act of public nuisance; in particular the act where it is alleged Mr Strickland chased Lachlan Peebles after Peebles had struck him in the face with a branch. Peebles was not called to give evidence in respect of the matter and the particulars make no reference to the incident. Mr Strickland confirmed in his evidence that the young fellow had hit him with the branch which was the explanation for his having blood on his face. In his evidence in chief Mr Strickland also said he was hit with a branch and as a consequence he was pissed off and he had tried to chase the young fellow around. Whether or not the act of chasing Lachlan Peebles would amount to an act of public nuisance given the circumstances in which it occurred is not a matter I intend to determine and I will not be giving consideration to that incident as constituting an act of public nuisance because of the failure to refer to it in the particulars and also because of the prosecution’s failure to call Mr Peebles to give evidence in respect to the matter.[2] Given my later findings I would not have been satisfied that this action constituted an act of public nuisance in any event.

   [2] R v Nugent 2011 QCA 127 at paragraph 5 – “It is well established that to warrant conviction, the evidence must establish a particularised charge, particularised in such a way that the jury identifies a specific occasion on which the alleged offence occurred, and the manner in which it occurred, sufficient to distinguish that offence from other uncharged acts admitted, say, to establish the relationship between the accused and the complainant. See R v F 1994 QCA 537 and R v S 2001 Queensland Report 445.”

1. Mr Strickland is charged with one count of public nuisance. That offence is said to be constituted by any one of a number of acts which were the subject of evidence, and which I have for my own benefit identified and extracted from the evidence.

1. The particulars allege Mr Strickland was seen and heard by numerous witnesses punching his chest and yelling abuse towards the Aboriginal people. Constable Milgate is the only witness to hear Mr Strickland say “fuck off cunt” to him and “come on cunts, come on”. Constable Milgate is the only witness to give evidence of Mr Strickland beating his chest. Constable Sprecher is the only witness to hear Mr Strickland say “fuck you I want to kill these fucking cunts”. There is no evidence Mr Strickland pushed an Aboriginal person in the chest. The evidence also fails to substantiate the particulars of being seen and heard by numerous witnesses punching his chest and yelling abuse towards the Aboriginal people.

The issues to be determined.

1. In order for me to convict Mr Strickland of the offence charged it will be necessary for me to find he is the person who committed the alleged particularised acts and then if I find Mr Strickland did commit those acts whether those acts or any one of them would amount to a public nuisance. At the commencement of the hearing the Prosecutor provided me with an opening. I was informed; “The incident occurred on New Years Eve 2009 at about 12:30am on 1 January 2010 police were called to the Mareeba RSL because of a disturbance inside the venue. The situation deteriorated. A large brawl was taking place outside the RSL. More police were called and arrived making a total of six police on the scene. Police estimate the crowd of aggressors to be about 30 and the total number of persons including spectators at between 100 and 150. Mr Strickland was amongst a number of persons who were engaged in public nuisance type behaviour. Mr Strickland was identified by police officers who knew him and also identified by civilian witnesses. Due to the number of people involved and because of the risk to police officers and civilians no arrests were made on the night. Mr Strickland was taken into custody and charged by police on 3 January 2010.”

1. Fourteen witnesses gave evidence, eight for the prosecution and six including Mr Strickland for the defence.

1. The situation which developed was a fluid aggressive alcohol assisted ugly situation which moved from the Mareeba RSL along the main street (Byrnes Street) past the Chemist shop, the Graham Hotel, the Real Estate agency, and the town library to the near vicinity of a roundabout at the intersection of Byrnes and Rankin Streets, a distance of almost three town blocks which would be over several hundred metres but slightly less than one kilometre. It would be difficult to imagine that any one of the participants could give an accurate metre by metre frame by frame exposé of the melee. The incident went on for a period of about twenty minutes.

1. I have attempted to isolate the incidents based on the particulars and the evidence, which might amount to public nuisance:

1.          Telling Constable Milgate to “fuck off cunt”. He appeared to be in a rage. He had his fists clenched and was beating his chest saying “come on cunts, come on”.

2.          Exchanging punches with David Williams.

3.          Fighting with Mr Walker.

4.          Fighting anyone and everyone.

5.          Yelling at Aboriginal persons while looking angry and aggressive prior to brushing past Constable Sprecher, and saying “fuck you I want to kill these fucking cunts”.

6.          Punching Ross Boyle to the ground.

7.          Fighting with John Isaac Grainer.

Identification

1. The issue of identification is one for me to decide as a question of fact.

1. Ms Veschetti argues that the case against Mr Strickland depends to a significant degree on the correctness of a number of visual identifications which Mr Strickland alleges are mistaken. There is a special need for caution before convicting in reliance on the correctness of that identification. The reason for this is that it is quite possible for an honest witness to make a mistaken identification. Notorious miscarriages of justice have sometimes occurred in such situations. A mistaken witness may nevertheless be convincing. Even a number of apparently convincing witnesses may all be mistaken.

1. It will be necessary to examine carefully the circumstances in which the identification by the witnesses was made. How long did the witness have the person, said to be Mr Strickland, under observation? At what distance? In what light? Was the observation impeded in anyway? Had the witness ever seen Mr Strickland before? If so, how often? If only occasionally had the witness any special reason for remembering him? What time elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description given to the police by the witness when first seen and the evidence the witness has now given?

1. The evidence of each individual witness while important in itself should not be regarded in isolation from the other evidence adduced at the trial. Other evidence tending to implicate Mr Strickland may be highly relevant, and may justify a conviction, while the evidence of identification, if it stood alone, would be insufficient. Identification by one witness may support evidence of identification by another, but even a number of honest witnesses may be mistaken about such a matter.

1. I do not believe identification is the main issue in this matter. Identification of Mr Strickland is clearly established. Mr Strickland admits to some of the events, notwithstanding it being put to some of the witnesses that it was not him who was involved in those events.

The Evidence

Constable Milgate.

1. Constable Milgate was the primary investigating officer. He was one of the officers who had attended the initial disturbance at the RSL. While at the RSL he was informed there was a brawl up the street. He left the RSL and drove in the police car south along Byrnes Street to near the intersection with Atherton Street. He left the strobe lights on because he was concerned about vehicles coming and hitting somebody, as they were right in the middle of the two south bound lanes of the highway. He could see in the headlights several people were fighting on the roadway. He recognised some of the people. It appeared Aboriginal people were fighting with Pacific Islander males. He recognised Aboriginals David Wayne Williams, Joseph Walker, Ross Boyle and Dwayne Williams and he recognised Pacific Islander males Les Strickland, Sione Takapu, Herman Sekea and although he did not know his name initially he recognised the face of Anthony Bishop. Observing this Constable Milgate called for another police unit as the crowd was too large for the three police officers then on the scene to control.

1. Constables Sprecher and Hemmings arrived at the same time.

1. Constable Milgate said he couldn’t say who was fighting who as sometimes there were two or three on one. They would run in and throw punches and then run out again.

1. Constable Milgate addressed Mr Strickland by name to make sure he had his attention and said “Les I am directing you to leave Byrnes Street now, go home and walk away”.  Mr Strickland replied “fuck off cunt”. Constable Milgate said Mr Strickland appeared to be in a rage. He had his fists clenched and was beating his chest saying “come on cunts come on” while looking at the Aboriginal people. Mr Strickland then walked past Constable Milgate. Mr Strickland was bleeding from the nose. Constable Milgate continued to try to control the situation speaking to individual combatants whenever he had the opportunity asking them to go home and stop fighting.

1. Later Constable Milgate spoke to an Aboriginal person known to him as Dave Williams. He asked Mr Williams to stop fighting and said if he was to stop fighting the others would stop fighting and that it was time to go home. Mr Williams responded “fuck off this is our land, Aboriginal land”. Mr Williams was also very, very aggressive. Constable Milgate then observed Mr Williams jog towards Mr Strickland and the two exchanged punches.

1. At this time there were several fights going on. Constable Milgate said while this was going on the crowd was moving slowly in a southerly direction to the vicinity of the Graham Hotel which is near the intersection of Byrnes and Hort Streets. At about this time Constable Milgate observed some bottles smashing around him and some Aboriginal males on the western side of Byrnes Street throwing bottles up into the air. He also observed other Aboriginal males stripping branches off trees in the main street. At this time the crowd had grown bigger. Constable Milgate observed Aboriginal women encouraging the Aboriginal men to fight. He particularly mentioned Dorothy Williams, Elaine Walker and Marilyn Grainer.

1. Constable Milgate said he observed Mr Strickland around the centre parking of the street. He was yelling something towards the Aboriginal people. He looked aggressive and angry. Constable Milgate then saw Constable Sprecher stand in front of Mr Strickland. Constable Milgate was about 2 metres away. Mr Strickland may well have been exhibiting such behaviour as he had been hit in the face with a piece of wood. No evidence was called as to the words being yelled towards the Aboriginal people. Constable Milgate could not hear the words, and Constable Sprecher gave no evidence of anything being yelled. None of the Aboriginal people who gave evidence said anything about any words being yelled at them, although it was put to Mr Strickland in cross examination: “So all the witnesses that we’ve heard in Court today are just making this up, that they saw you calling out to the Aboriginal people to come and fight?” Mr Strickland replied, “Yeah, oh – I know I – I know I didn’t call any Aboriginals to come fight me. When I got back there I was more concerned for the group”. I am not aware of any evidence from any of the Aboriginal people that supports this line of questioning. The only person to give evidence of Mr Strickland egging on the Aboriginals is Constable Milgate where he says Mr Strickland said “come on cunts come on”. He said he saw Constable Sprecher put his arms up to stop Mr Strickland going forwards towards the Aboriginal persons. Mr Strickland was bleeding from his nose at the time. Constable Milgate observed Mr Strickland with his forearms push towards Constable Sprecher which caused Constable Sprecher to step back two or three steps. At this time Mr Strickland continued forward past Constable Sprecher, Constable Milgate grabbed Constable Sprecher by the arm and observed that he had been sprayed with blood on his shirt, which he assumed was from Mr Strickland’s nose. No forensic evidence in respect of this blood was available to the Court. Constable Milgate did not say what Mr Strickland did after he went past Constable Sprecher. Constable Milgate indicated to Constable Sprecher that it was necessary for the police to regroup as he feared for the safety of the police officers. Constable Milgate said that it was going to be necessary to let them continue to fight and that he had said this because of what Mr Strickland had done to Constable Sprecher, by pushing him. There is no evidence Mr Strickland pushed Constable Sprecher at all.

1. The groups continued to fight. Constable Milgate requested police back up from other districts.

1. Constable Milgate said he observed John Isaac Grainer and John Burke Grainer on the footpath exchanging punches with Pacific Islander males. He could not recall who the Pacific Islander males were.

1. Constable Milgate said he knew Mr Strickland through several police inquiries. He said he had intercepted him once close to his home whilst he was driving. Constable Milgate said also that in 2008 Mr Strickland’s son Ty was in a Mareeba Gladiators junior rugby league side which he was coaching. He also said he had been in Mareeba as a police officer since 2006 and he recalled meeting Mr Strickland in his first year.

1. Constable Milgate said at the time when Mr Strickland said to him “fuck off cunt” he was within reaching distance of Mr Strickland.

1. Under cross examination, Constable Milgate confirmed repeatedly he was 100 per cent sure the person he had observed on the evening was Les Strickland. He said at the time when David Williams jogged up towards Mr Strickland he was absolutely sure it was Mr Strickland. Both Mr Strickland and Mr Williams acknowledge this event occurred. At this time he said he was 10-15 metres away from Mr Strickland. He also confirmed it was Mr Strickland who brushed past Constable Sprecher. Constable Milgate agreed it was night time, there were a lot of people fighting all around and the crowd was getting bigger and bigger.

1. Constable Milgate was asked in cross examination whether he knew Mr Strickland’s brother. He said he did not know him at the time but he does know who he is now.  He said he had never had a conversation with him and when asked whether Mr Strickland’s brother was there on the night he answered “not that I recall”. He conceded he may have been there but he did not recall seeing him.

Constable Sprecher.

1. Constable Sprecher said during the melee he came face to face with a number of the Pacific Islander men including Sione Takapu and Les Strickland.  He said he told them “enough is enough, break it off no more fighting”. To which Mr Strickland replied “fuck you I want to kill these fucking cunts”. He said Mr Strickland had come within an arms length, moved to his right hand side and brushed past him. Constable Sprecher did not say what Mr Strickland did after he brushed past him. Shortly afterwards he heard bottles smashing on the roadway about five to ten metres from where he was standing and Constable Milgate said that they would have to pull back. At about this time Constable Sprecher said he saw Mr Strickland and an older indigenous male person, who he now knows to be John Isaac Grainer, become involved in a fight outside the town library. He observed them to be moving back and forward on the footpath, exchanging blows, this he said went on for maybe 30 seconds to a minute before they both backed off. He makes no mention of John Isaac Grainer being knocked to the ground by Mr Strickland’s brother, or of them continuing to fight.

1. Constable Sprecher said from about the time he was in the foyer of the RSL and asked to come out into the street by staff he could see the number of people involved and was immediately concerned. He said the police did not have full crews and two of the police officers were first year Constables. He said he had a concern someone was going to get hurt and members of the police force were going to get hurt as well. He said at times the melee was across both lanes of traffic.

1. There was no evidence from anyone of any actual vehicular or pedestrian traffic in the area.

1. Constable Sprecher said he had dealt with Mr Strickland on a few occasions. He recalled he had been involved some six to twelve months earlier making enquiries when Mr Strickland’s daughter went missing at the High Rocks, being a swimming hole in the Barron River North of the Mareeba Township. He said police were called in to assist on that occasion and that was the first time he had met Mr Strickland face to face. He said he spoke to him a couple of times at least on that occasion; otherwise he had seen him around.

1. When asked about the incident where Mr Strickland had brushed past him he said it was not a push in the chest but more of a situation where Mr Strickland was simply moving to get past him. He said Mr Strickland was looking beyond his shoulder. Constable Sprecher was also looking at Sione Takapu who was in a more agitated state. When it was put to him he was mistaken that it was Mr Strickland, he replied he was 100 per cent certain it was Mr Strickland. Mr Strickland also gave evidence of this incident having occurred. (P1-86)

1. It was put to Constable Sprecher that on the evening he had mistaken Anthony Bishop for Tony Schaffe. Constable Sprecher explained he accepted Tony Schaffe was not there. He said it was not a misidentification, rather a case where he had to look at photos to confirm the name of the person who had been seen there.

1. Constable Sprecher was also asked whether he knew Mr Strickland had a brother to which he replied at the time he was not aware of that. He also confirmed his brother’s name did not come up as someone who may have been involved in the incident during the investigation as so far as he was aware.

Constable Marcel.

1. Constable Marcel also attended the incident. He said he saw Mr Strickland with blood on his nose and he said to Mr Strickland to “move away, this is not the time for this”, to which Mr Strickland replied, “It’s that woman causing all the trouble”. Constable Marcel turned and observed Marilyn Grainer, she was stating “this is Aboriginal land, Mareeba is Aboriginal land, Mareeba is our land”. Constable Marcel then had a conversation with Marilyn Grainer.

1. Constable Marcel said Mr Strickland pointed out Mrs Grainer as being the person who was causing all the trouble. Mr Strickland said it was his brother who said that to the police officer.

1. Constable Marcel confirmed he knew Mr Strickland and that he had dealt with him on several occasions in the months prior to the event.

Joseph Walker.

1. Joseph Walker was one of the Aboriginal people involved in the incident. He said he recognised people who were fighting including Mr Strickland. He said Mr Strickland was up at the end of the street fighting everybody and anyone. He also said he thought he was fighting with Mr Strickland. Under cross-examination Mr Walker confirmed Mr Strickland was fighting indigenous people, however when asked if he saw Mr Strickland fighting with any of the indigenous people he said, “no, not really”. Mr Walker initially said he had fought with Mr Strickland; he then was not sure and said he had had a fight with a few people. When pressed under cross-examination that he may have been mistaken as to who he had a fight with he was sure it was Mr Strickland he had seen but he was not sure if he had a fight with him. Mr Walker also confirmed he had known three of the Pacific Islander men being Mr Stickland, Sione Takapu, and Mr Strickland’s brother. Mr Walker was also questioned under cross-examination about a conversation he had with Mr Strickland’s brother on the evening. He confirmed he had been talking to Mr Strickland’s brother and he knew him and he recognised his face. He said he was able to tell Mr Strickland and his brother apart. When it was suggested to him he had been speaking to Mr Strickland and not with his brother he said that was not the case.  He confirmed he had definitely been speaking with Mr Strickland’s brother about stopping the fighting and when he had said he had seen Mr Strickland fighting up the street it was definitely Mr Strickland.

David Williams.

1. David Williams said he recognised Mr Strickland and had challenged him to a fight but he did not fight with him. Mr Williams said Mr Strickland was bleeding from the nose at the time; he made no mention of any incident involving John Isaac Grainer, or of himself being punched by Mr Strickland as stated by Marilyn Grainer.

John Isaac Grainer.

1. He too was one of the Aboriginal male persons involved in the incident. He said he knew Mr Strickland through football and he had seen him at the incident. He identified Mr Strickland, Sione Takapu, Anthony Bishop and Mr Strickland’s brother as being there. He said he saw his nephew (Ross Boyle) punched to the ground and it was Mr Strickland who hit him. Upon seeing this Mr Grainer said to Mr Strickland words to the effect – “pick on someone your own size”. He said Mr Strickland then threw a punch at him and that he retaliated and hit him back in the face and he backed off. He said Mr Strickland’s brother king-hit him, knocked him to the ground, jumped on him and started belting into him. After his nephew Dwayne Williams got Mr Strickland’s brother off him he and Mr Strickland’s brother fought some more. Under cross-examination Mr Grainer confirmed his nephew Ross Boyle had been punched in the eye and knocked to the ground and that he was standing right beside him when it had happened. He said he was not mistaken it was definitely Mr Strickland who had hit Mr Boyle. He said Mr Strickland’s brother was standing nearby at that time. I understand Mr Grainer to be saying this occurred near the library. Mr Grainer makes no mention of his son John Burke Grainer being there at this time. As Mr Strickland says the incident with John Burke Grainer occurred near the Real Estate office, opposite the Graham Hotel it lends weight to my finding that the John Burke Grainer and Lachlan Peebles incident occurred before the Ross Boyle, John Isaac Grainer incident. The library (where this incident clearly occurred) is nearly 100 metres further along Byrnes Street from The Real Estate agency office.

Ross Boyle.

1. He said he had joined into the fight in front of the town library and he had been at the RSL drinking. He had seen his brother-in-law David Williams, his uncle John Isaac Grainer Senior and his cousin John Burke Grainer and the Kiwi boys, Mr Strickland, Sione Takapu and although he did not know him as such at the time, Mr Stickland’s brother. He said he knew Mr Strickland through football. He said he saw Mr Strickland fighting anyone and everyone who was in front of his face. He said he could not recall fighting him and he could not recall who he had been fighting with. Under cross-examination he confirmed he had been fighting with whoever was in front of him, whoever he could swing at. He said Mr Strickland was doing the same. He was asked whether he recalled been knocked to the ground and he said he thought it was Mr Strickland’s brother who knocked him to the ground.

Marilyn Grainer.

1. She said she had seen her nephew, Ross Boyle, hit by Mr Strickland’s brother and knocked to the ground. She said her brother David Williams had gone in to help and Mr Strickland had hit Mr Williams. She said then her husband John Isaac Grainer and Mr Strickland were fighting. She also said Mr Strickland’s brother hit her husband John Isaac Grainer, knocked him to the ground, jumped on him and was hitting into him.

1. Marilyn Grainer said she knew Mr Strickland through her sons and through football; and he had been to her place visiting her sons. She confirmed she knew him very well and that she knew him more better than any of the other Kiwis.

The Defendant Les Strickland.

1. Mr Strickland gave evidence he, Anthony Bishop (know as Tony), Herman, Sione, the three girls and his brother had gone to the RSL at about 11:30 pm on 31 December 2009. He said there had been an incident at the RSL between one of the girls and an Aboriginal girl and he had seen Trish at the front of the RSL with Constable Milgate. He said he confirmed with Constable Milgate that Trish was not under arrest and therefore they were leaving. He said they left the RSL to walk to his brother’s home which was at that time near the roundabout at the intersection of Rankin and Byrnes Streets. He said the other two girls caught up with them and they walked on. Tony, Herman, Sione and his brother remained at the RSL. Mr Strickland said as they walked some Aboriginal girls were yelling from the other side of the street at them but they just kept walking. He said they could hear commotion behind them but they kept walking until he was able to leave the three girls at the bottom of the stairs to his brother’s flat and then he returned to Byrnes Street. He said when he returned to Byrnes Street the others were near the Chemist just down from the Graham Hotel and his brother had a bleeding nose. He could see a couple of the Murri blokes fighting Sione. He said a female police officer came up and asked him to get the boys to leave the area. No female police officer gave evidence. His brother was warning him to watch the indigenous men. He said he grabbed Sione and called to Herman as they were all spread out. Sione had been knocked to the ground. He and Sione managed to get back to where his brother was while Tony was still out in the street. He was concerned they had to all get together, the Aboriginal crowd was abusing them and they were trying to walk backwards. He said the Aboriginal crowd just kept coming at them and that there were at least 30 of them attacking. They were just running in and punching.

1. He said David Williams had run up to him and he had adopted a fighting stance and stood his ground. He said he was then attacked from all sides and he managed to roll out of the fight but the crowd just kept coming at them. He said at no stage was he egging them on and they were out numbered. He denied actually fighting Mr Williams.

1. He said when they got to the vicinity of the Graham Hotel there was a bit of a break but then the crowd came at them again. He said he was standing near his brother when John Burke Grainer and John Isaac Grainer walked straight up to him. This was near the Real Estate agency on the corner opposite the Graham Hotel. He said he looked at John Burke Grainer and said words to the effect “Bro fuck that’s enough”. He said John Burke Grainer walked up to him and threw a punch at him and he went down. He said while he was getting up a young bloke smacked him in nose with a branch. He said the young bloke then hit Herman with the stick. He said he was pissed off by this and tried to chase the young fellow around. He denied he had actually punched John Burke Grainer.

1. Mr Strickland said Constable Sprecher was in front of him and he went to step past him. He said his brother had grabbed him and that was when the incident with the two Grainers and his brother (being as I understand it a reference by Mr Strickland to the incident at the library) happened. His recollection was he had not actually punched John Isaac Grainer.

1. He denied pushing any police officer in the chest, which was not an allegation in any event. He denied he had a fight with David Williams. Mr Williams denies this too. He denied he punched Ross Boyle; that he had told Constable Milgate to “Fuck off cunt” although he agreed that he had said that to the Murri people not police; he also did not agree he had said “Fuck you, I want to kill these fucking cunts”. He said he did not exchange punches with Joseph Walker and he confirmed his brother was definitely there at the time.

1. Under cross-examination it was put to Mr Strickland he did argue and was physical with people to which he replied he stood his ground and he was getting punched by six people and then another six people. He acknowledged John Isaac Grainer Senior had punched him but he did not get to punch him back. When it was put to him he had been punching his chest and yelling “Come on you black cunts” he said he didn’t remember that and he did not agree he had encouraged the Aboriginal people to fight. He denied saying “Fuck you I want to kill those cunts” to Constable Sprecher.

1. Although Mr Strickland’s evidence was not as clear and precise as it might have been he gave evidence in a confident manner. However one passage of his evidence in particular appeared to lack the conviction which he otherwise ordinarily expressed. I don’t wish to be unduly critical of Mr Strickland or any other witness for not being able to give a blow by blow description of the incident from start to finish and it is understandable that there will be gaps in the evidence so far as the sequence is concerned. The section of Mr Strickland’s evidence however which concerned me, and where I was not convinced by Mr Strickland’s answer, appeared in his evidence in chief where it was put to him that he said to a police officer “Fuck off cunt”. His reply was he had not said that directly to a police officer and he may have been talking to the Murris but not to the police officer. He was then asked whether he had said “Fuck you, I want to kill these fucking cunts” to which he replied “No, I can’t recall saying that”. Mr Strickland’s demeanour in providing those two answers was such as to strengthen my view that the evidence given by the police officers in respect of those conversations is in fact correct.

1. I have attempted to study the evidence and make sense of it, and at the end I have concluded Mr Strickland’s evidence and that of his brother is confused and to some extent unreliable. That is not to say I accept all other evidence as being reliable and unconfused, I do not.

Sione Takapu.

1. He confirmed there had been an incident at the RSL and Mr Strickland had left with the three girls. He said they had left the RSL and the crowd had caught up with them when they were near the ANZ and Commonwealth Banks in Byrnes Street. He said Mr Strickland came back to see if they were alright but he was not sure when he had arrived back. He said Mr Strickland was encouraging them to just leave and go home. He did not see him fight with anyone. He also did not see anyone attack him although he did say he saw he was bleeding but this was not until the end. He said he saw Mr Strickland’s brother was bleeding and he had seen him fighting.

Anthony “Tony” Bishop.

1. He was one of the group of Pacific Islander men. He confirmed Mr Strickland had left to take the three girls home. He said he, Sione, Herman and Mr Strickland’s brother started walking home. He said they could hear but not see the Aboriginal crowd behind them. He could tell they were getting closer and mouthing off at them and he could hear bottles being smashed. He then felt a stick being whacked on his back. He turned around and was rushed by the crowd. He said they were fighting in front of the police car. Mr Strickland wasn’t there at that time and he came back later. He said Mr Strickland grabbed him and they tried to stay together in a little huddle, and it was Mr Strickland’s intention to get them out of trouble. He did not see Mr Strickland exchanging punches and did not see anyone punch Mr Strickland. He did see Mr Strickland’s brother fighting.

Patricia Takapu.

1. She too had been at the RSL. There had been an incident and Mr Strickland walked her and the other two girls back to his brother’s flat in Rankin Street. She said as they were walking the other four boys were further down the street from them. She said there was a group of Aboriginals behind them and when they looked back they could see little fights starting. She said Mr Strickland walked them all the way home to the bottom of the stairs and then he told them to stay there. They could hear heaps of swearing and yelling. Mr Strickland said he would go and get the other boys because he knew both Pacific Islanders and the Aboriginals. She said when the boys came back they were all battered and bruised.

Tanya Rohde.

1. She was one of the girls who had been taken home by Mr Strickland. She confirmed Mr Strickland had walked them to the stairs and waited for them to go up stairs and he had said he was going back to make sure the boys were okay.

Tautu Strickland.

1. Tautu Strickland is Mr Strickland’s brother. He said he had been at the RSL on 31 December 2009 after leaving from his place at about 11:15 pm. He said there had been an incident at the RSL and they left and when they went outside there was a group of some 20 Aboriginals cursing and swearing at them. He said they were swearing at the Aboriginal people as well. He said as they moved up the road the groups were still cursing one another and as they passed a local nightclub more people came out to join the Aboriginal group. He said when they got near to Atherton Street the group started throwing bottles and the first punches. He said they were defending themselves from the group which was running towards them. He said the police were trying to split the groups up but every time they did Mrs Grainer told the group to “get those Kiwi boys.” He said he had told a police officer to get her as she was sparking everyone up. He said his brother had returned and was trying to calm everyone down when a young fellow hit him with a branch across the nose. He said his brother was telling them to stop, “We don’t want trouble, we just want to get home”. He said Mr Strickland was stunned and that he ran through a police officer to get to him. He said he would have had physical contact with the police officer as he ran through him. He said he grabbed Mr Strickland and there were a couple on him and he was trying to cover up. He said somewhere past Claude Caters Mensland (near the Real Estate agency); John Burke Grainer went to throw a punch at Mr Strickland and missed. He said he jumped in and threw a punch but missed and he ended up on the ground. The Aboriginals were then punching and kicking him and Mr Strickland got him up and they were then moving backwards. He said he had punched John Burke Grainer and he had punched a man to the ground although that would have been at the beginning when they had first come towards them.  He said he did not know who that man was. He said he did not see Mr Strickland punch anyone. When asked whether Mr Strickland had been aggressive towards the Aboriginal people he said there had been a lot of yelling going on. When asked whether he had seen Mr Strickland yell at police in an abusive and aggressive way he answered “Everyone was yelling at the police”.

1. Under cross examination he confirmed he had never seen the person he had hit before and that this occurred between the RSL and Atherton Street (nowhere near the library). He confirmed it was he who had brushed past the police officer and it was he who had spoken to the police officer and asked him to get Mrs Grainer out of the way. He said Mr Strickland had only been there for a short time and he was trying to keep an eye on him and the other boys.

Consideration of the Evidence.

1. Mr Strickland’s case is he was not there for much of what was going on; he had taken the three girls home to his brother’s flat and the identification of him is mistaken. In support of the misidentification Mr Strickland makes the point the police missed the fact his brother was there; the police had identified a Mr Richards as Mr Williams; Tony Schaffe was identified as being there but was not, the person who was there being confirmed as Anthony Bishop, and also Mr Strickland’s brother agreed he was there, he had been aggressive, punching people and had run through a police officer.

1. I have already indicated it would be difficult for any person involved in this incident to give a frame by frame in sequence recollection of events. Although there have been allegations of misidentification made against Constable Sprecher that misidentification has I believe been satisfactorily explained.

1. I have had the opportunity of observing Mr Strickland and his brother and my observation is whilst both men are of Pacific Islander appearance, Mr Strickland is somewhat shorter and stockier then his taller brother. It would I think be difficult to confuse the two.

1. I accept the identification evidence of Constables Milgate and Sprecher, Joseph Walker, John Isaac Grainer and Marilyn Grainer all of whom have known Mr Strickland and identified him in one way or the other participating in the various incidents which are said to constitute public nuisance. Mr Strickland himself gave evidence he had gone to step past Constable Sprecher, he had chased Lachlan Peebles (although I don’t think he knew his name) and he may have called to the Aboriginals “fuck off cunt”. He also said he had taken a swing at John Burke Grainer (P1-85) and he was involved in an incident where John Isaac Grainer had punched him (P1-95). He confirmed he had taken a fighting stance with Mr David Williams. Interestingly Constable Milgate says it was Sione Takapu who approached him and spoke to him in the foyer of the RSL. Mr Takapu appears to agree with this. Mr Strickland says it was he who approached Constable Milgate in the foyer of the RSL. Mr Strickland’s brother says it was Mr Strickland who approached Constable Milgate. Patricia Takapu says Sione Takapu was with her when she was speaking to Constable Milgate. There may be reasons for this confusion of evidence. One reason may be that both Mr Strickland and Sione Takapu spoke to Constable Milgate in the foyer of the RSL. If that had been the case I would have expected Constable Milgate to give that evidence, especially as he was cross examined about it. It was not directly put to Constable Milgate that it was Mr Strickland who spoke to him. There does not appear to any advantage to Mr Strickland to lay claim to speaking to Constable Milgate if he did not, other than perhaps to try to discredit the evidence of Constable Milgate. If that was the intent then it has failed. It is another example of where in this matter the evidence has been left in an unsatisfactory state.  

1. I accept Mr Strickland’s evidence that he had taken the girls home and had gone back to make sure the others were ok. I accept that upon returning to the fray it would have been very difficult not to get involved in it. There is no evidence Mr Strickland returned with blood in his heart, or he was spoiling for a fight.

1. Mr Strickland’s brother gave evidence he was aggressive and fighting on the night in question and he had run through a police officer.  I believe it was my assumption and possibly of others that this was a reference to the incident with Constable Sprecher; it is unclear but possible there was more than one incident such as this; especially as it sounds like a more aggressive action to what Constable Sprecher describes as Mr Strickland brushing past him. It may also be the evidence of Mr Strickland’s brother that he knocked a man to the ground is suggesting he was the person who punched Ross Boyle to the ground. Ross Boyle said as much. I did not find Mr Boyle to be a very impressive witness. It is clear on the evidence of Mr Strickland’s brother the incident referred to by him when he knocked a man to the ground happened at the beginning of the brawl. Maybe Mr Boyle was knocked to the ground more than once.

1. In respect of the whole of the incident as I have gone to some pains to point out it is difficult for people to be able to give a blow by blow description and that difficulty would I expect be harder for the civilian witnesses particularly those who had been drinking alcohol and those who were being pummelled by a number of assailants at any one time.

1. I have had difficulty extracting from the evidence a chronology of events. Was Mr Strickland bleeding from the nose as a result of other trauma prior to being hit by Lachlan Peebles with the branch? It is clear Mr Strickland was bleeding from the nose at the time he brushed past Constable Sprecher. Constable Milgate said Mr Strickland was bleeding from the nose the whole time. Mr Williams said Mr Strickland was bleeding from the nose when he challenged him. Constable Sprecher said when he was face to face with Mr Strickland he had blood on his face. Mr Strickland said he was bleeding from the nose because of being hit with the branch. Mr Strickland did give somewhat of a confused answer to a question by Ms Veschetti (page 1-102. line 20) as to whether he was bleeding from the face before being hit with the branch. Initially he answered “only just from my mouth and that”. Ms Veschetti then said “Before that - before you got hit in the face with the branch” Mr Strickland answered “No” .

It is possible the branch incident occurred not long after Mr Strickland returned from taking the girls home.

Mr Strickland says he was hit with the branch after being hit by John Burke Grainer. John Burke Grainer did not give evidence.

Constable Milgate did not see Mr Strickland hit with the branch but did see John Isaac Grainer and John Burke Grainer fighting Pacific Islander males on the footpath. Constable Sprecher did not see Mr Strickland hit with the branch but did see Mr Strickland fighting with John Isaac Grainer, which was after Mr Strickland had brushed past him.  Marilyn Grainer does not give any evidence of Mr Strickland being hit with the branch at the fight with John Isaac Grainer but she said she saw Mr Strickland chasing Lachlan Peebles before the fight with John Isaac Grainer. Mr Strickland’s brother says Mr Strickland was smashed with a branch by a young fellow, but does not tie this incident in with any altercation with either Mr Grainer. John Isaac Grainer did not give any evidence of Mr Strickland being hit with a branch.

It is reasonably certain Mr Strickland suffered damage to his nose and mouth as a consequence of the blow from Lachlan Peebles with the branch, and this incident preceded the incident with Constable Milgate and the incident with Constable Sprecher which itself preceded the incident with Ross Boyle and John Isaac Grainer. Constable Sprecher places the fight with John Isaac Grainer after Mr Strickland brushed past him. Constable Milgate does not appear to have seen Mr Strickland fighting John Isaac Grainer. From the chronology of evidence as given by Constable Milgate it would appear the incident with David Williams occurred prior to the incident with Constable Sprecher.

I am prepared to find the incident with Lachlan Peebles happened prior to the incident with Constable Sprecher, and Mr Strickland was at that time reacting to being hit by Lachlan Peebles and this happened before the incident with Ross Boyle and John Isaac Grainer. I find Mr Strickland was bleeding from the face at the time Constable Milgate spoke to him and at the time of the incident with David Williams. The only evidence on this point (which in the scheme of things is an important point) is from Mr Strickland and Mrs Grainer.

On the evidence before me I can only find Mr Strickland was bleeding from the nose as a consequence of being hit by Lachlan Peebles with the branch and this occurred prior to any incident relied upon by the prosecution as constituting public nuisance. This finding would also support a finding based on Mr Strickland’s uncontested evidence that he had tried to speak to John Burke Grainer saying “bro fuck that’s enough” but John Burke Grainer punched him causing him to double over, and when he straightened up he was hit with the branch.

1. The first incident which is said to amount to an act of public nuisance is the allegation Mr Strickland told Constable Milgate to “fuck off cunt”, and saying “come on cunts come on”. The evidence in support of incident with Constable Milgate where Mr Strickland was directed to leave Byrnes Street is supported only by the evidence of Constable Milgate. I accept Constable Milgate knew Mr Strickland and was able to make a clear identification of him at the time. I accept Constable Milgate addressed Mr Strickland by name to make sure he had his attention and said, “Les I am directing you to leave Byrnes Street now. Go home and walk away.” I accept Constable Milgate’s evidence that Mr Strickland replied, “fuck off cunt.” Constable Milgate said Mr Strickland appeared to be in a rage. He had his fists clenched and was beating his chest saying, “come on cunts, come on”, while looking at the Aboriginal people.

Mr Strickland said he did not tell any police officer to “fuck off” but he might have said it to the Murris. Mr Strickland was not specifically cross-examined on the exact words said to be used (“come on cunts, come on”) when he had been directed by Constable Milgate to leave Byrnes Street. Instead the prosecutor put to him in cross-examination he had on several occasions said, “come on you black cunts.”

The particulars allege Mr Strickland was seen and heard by numerous witnesses punching his chest yelling to Aboriginal men to come and fight and using the words “come on cunts, come on” and “fuck off, I’m going to kill those cunts.” This later statement not being in respect of the Milgate incident, but the Sprecher incident.

The particulars do not match the evidence of Constable Sprecher in that Constable Sprecher said Mr Strickland said; “F.u. I want to kill these f’ing c’s”, which I accepted as Constable Sprecher’s shorthand way of saying “Fuck you. I want to kill these fucking cunts”.

The particular that Mr Strickland was heard by numerous witnesses to be saying these things has not been made out. This will assume greater importance when I consider the second limb of Section 6.

Constable Milgate is the only witness to hear Mr Strickland say, “fuck off cunt” to him and “come on cunts, come on”. Constable Milgate is the only witness to give evidence of Mr Strickland beating his chest.

Constable Sprecher is the only witness to hear Mr Strickland say, “fuck you, I want to kill these fucking cunts.”

I am satisfied Mr Strickland acted in the manner described by Constable Milgate.

1. The second incident which is alleged to amount to an act of public nuisance relates to the incident where David Williams jogged towards Mr Strickland. This incident does not appear to be denied by anyone. Constable Milgate gave evidence he observed this and he observed Mr Strickland and Mr Williams exchange punches. David Williams says he challenged Mr Strickland to fight and Mr Strickland backed away. They did not fight. Mr Strickland said David Williams challenged him and he accepted in that he said, “yeah, whatever.” David Williams ran to him and they both adopted a boxing stance. He said he was then attacked by five or six other fellows, including it appears Mr Dwayne Williams. Mrs Grainer gave evidence of Mr Strickland attempting to hit Mr Williams however this appears to be at a different time to the event relied upon by the prosecution.

1. Mr Williams went to Mr Strickland as if to fight but I accept they did not fight. I accept Mr Strickland was mobbed at the time by other aggressors. It would be difficult to expect that Mr Strickland being attacked from all sides would not himself throw some punches in the process of extracting himself from the attack. I accept Mr Strickland and Mr Williams did not fight and Constable Milgate is mistaken about this; which would be reasonable in the circumstances where Mr Strickland was in close quarters with a number of people including Mr Williams.

If I had found Mr Strickland and Mr Williams did exchange punches (as observed by Constable Milgate) I may well have been satisfied that although Mr Strickland stood his ground in anticipation of the attack he was acting in a defensive way. I am not satisfied saying “yeah, whatever” to Mr Williams and being attacked by a number of assailants could amount to an act of public nuisance by Mr Strickland.

1. The third incident which is alleged to amount to an act of public nuisance relates to the allegation Mr Strickland fought Mr Walker.

Mr Strickland says he was attacked by a number of assailants including Mr Walker. It appears from Mr Strickland’s evidence this is the follow up to the incident with Mr Williams. He said there were punches coming from everywhere and he rolled out of that fight. He did not exchange punches with Mr Walker. Mr Strickland otherwise denied fighting Mr Walker. Mr Walker’s evidence is unreliable. He was ultimately not sure if he had a fight with Mr Strickland. The evidence does not support a finding Mr Strickland fought with Mr Walker. I accept Mr Strickland was attacked by a number of people including Mr Walker. The only evidence of the events preceding this attack is that Mr Williams challenged Mr Strickland and although Mr Strickland prepared to meet that challenge they did not fight. I am not satisfied Mr Strickland’s involvement in the melee which was him being attacked firstly by Mr Williams and then several other men could amount to him committing an act of public nuisance.

1. The fourth incident which is said to amount to an act of public nuisance relates to the allegation Mr Strickland was fighting everybody and anybody. Mr Boyle said Mr Strickland was fighting anyone and everyone who was in front of his face. Mr Walker said Mr Strickland was fighting everybody and anyone. The Court is being invited it would appear to conclude Mr Strickland was intentionally going about indiscriminately fighting anyone who came within range. Actively being involved in a multiparty brawl could amount to an act of public nuisance but the evidence of Mr Boyle is non-specific and incomplete. I was not impressed with Mr Boyle when he gave his evidence. Was the observation one of a defensive action or an aggressive action? Mr Walker’s evidence is unreliable as he changed his mind on whether he saw Mr Strickland fighting indigenous people and even was unsure whether he had fought with Mr Strickland himself. It is clear from Mr Strickland’s evidence he and the other Pacific Islander men were being attacked by multiple assailants while back peddling towards the safety of Mr Strickland’s brothers flat. There is no other evidence Mr Strickland was fighting anyone who just happened to get in front of him. In fact Mr Strickland’s uncontested evidence is he tried to talk to John Burke Grainer, and was punched for his efforts. There is the evidence of Constable Milgate that Mr Strickland challenged the Aboriginal men to fight, but there is no evidence to say what happened as a consequence of that challenge. On the evidence as presented I am unable to make a specific finding Mr Strickland was fighting anyone and everyone. If I had been able to do so I would not be able to find that action would constitute public nuisance under section 6 of the Summary Offences Act as I could not find what the cause of any fighting may have been. That is, as a result of the challenge by Mr Strickland or as a result of being attacked by the Aboriginal men. The evidence is insufficient to consider this allegation any further.

1. The fifth incident which is alleged to amount to an act of public nuisance is yelling at Aboriginal persons while looking angry and aggressive before brushing past Constable Sprecher and saying, “fuck you, I want to kill those fucking cunts.”

Constable Milgate observed Mr Strickland to be yelling towards the Aboriginal people. He said he looked aggressive and angry. He observed Mr Strickland to push toward Constable Sprecher. The allegation is not he pushed Constable Sprecher. Constable Sprecher said he came face to face with Mr Strickland and Sione Takapu and he said to them “enough is enough. Break it off. No more fighting.” Mr Strickland replied, “fuck you, I want to kill these fucking cunts” before brushing past him. Although Ms Veschetti put to Constable Milgate he was mistaken as to the identity of the person who pushed Constable Sprecher in the chest the allegation is not as I understand the evidence of Constables Milgate and Sprecher that Mr Strickland pushed Constable Sprecher in the chest. (Constable Milgate does use the word push when describing why he had thought it necessary to regroup the police officers). The allegation is he pushed towards Constable Sprecher or as Constable Sprecher puts it “brushed past” him. Mr Strickland denies using the language. He does admit to a situation where he had gone to step past Constable Sprecher. He makes no mention of just how or why this happened. Although Ms Veschetti put to Constable Sprecher it was not Mr Strickland who had brushed past him and told him to “fuck off” Mr Strickland himself gives evidence of such an incident. Ms Veschetti also put to Mrs Grainer that Mr Strickland did not chase Lachlan Peebles. Mr Strickland gave evidence he did try to catch Lachlan Peebles. I am satisfied Mr Strickland acted in the manner described by Constables Milgate and Sprecher.

There is no evidence anyone other than Constable Sprecher heard what Mr Strickland said, or saw him acting as described by Constable Milgate.

1. The sixth incident which is alleged to amount to an act of public nuisance is the allegation Mr Strickland punched Ross Boyle to the ground. John Isaac Grainer saw Mr Strickland punch Mr Boyle to the ground. Mr Boyle said he thought he had been knocked to the ground by Mr Strickland’s brother. Mr Strickland denies punching Mr Boyle. Mrs Grainer said it was Mr Strickland’s brother who knocked Mr Boyle to the ground. She also said David Williams came in to help at that point. No one else, including Mr Williams, gave any evidence of Mr Williams being there at this point in time. John Isaac Grainer said his nephew Dwayne Williams was there at the time and he helped him up after he was hit by Mr Strickland’s brother. Mr Tautu Strickland said he did punch a man to the ground but that would have been at the beginning when the Aboriginal men had come towards them. I accept the evidence of John Isaac Grainer that he saw Mr Strickland punch Mr Boyle to the ground. There is no other evidence as to what preceded this. I bear in mind Mr Boyle’s own evidence was he was in a drunken state and he was fighting against whoever he could swing at. It is likely Mr Strickland was acting in response to an attack on him by Mr Boyle. Knocking Mr Boyle to the ground is obviously a violent action. There is no evidence to explain this, other than Mr Boyle’s own evidence that he was fighting against whoever he could swing at.

1. The final incident which is said to constitute an act of public nuisance relates to fighting with John Isaac Grainer. Mr Grainer said he wouldn’t have been involved except he saw his nephew Ross punched to the eye and knocked to the ground. He said it was Mr Strickland who hit him. He said to Mr Strickland “why don’t you pick on someone your own size”. Mr Strickland had a swing at him and then he retaliated. He said it lead from there with Sione getting into it and Anthony Bishop.  He also said Mr Strickland’s brother king-hit him and jumped on him. He said his nephew, Dwayne Williams, got Mr Strickland’s brother off him and they fought from there.

1. Mr Grainer was sure he recognised Mr Strickland, he said he had not known Mr Strickland’s brother until that night but his brother was a different bloke, he was taller and not as thick set as Mr Strickland. Under cross-examination Mr Grainer was adamant he knew Mr Strickland when he saw him. He said his brother was there and was standing near the library.

1. Mr Boyle agreed he was intoxicated on the night; he appeared an unimpressive witness. He said he was fighting whoever was in front of him. He did not recall fighting with Mr Strickland. Under cross-examination he thought he had been knocked to the ground by Mr Strickland’s brother. Mr Strickland’s brother admitted knocking a man to the ground, but this was earlier in the altercation, between the RSL and Atherton Streets. The incident which Mr Boyle was said to be involved in occurred near the library which is further up the street from where hostilities began, and further along the street from where the Peebles incident occurred (near the Real Estate agency).

1. Marilyn Dawn Grainer, wife of John Isaac Grainer said she saw her nephew, Ross Craig Boyle, king-hit by Mr Strickland’s brother and knocked to the ground. She said her brother, David Williams, went to pick Mr Boyle up from the ground and then Mr Strickland hit Mr Williams. She said then her husband, John Isaac Grainer turned up and he and Mr Strickland were just fighting. She said then Mr Strickland’s brother ended up fighting with her husband and it was just one big fight. She was certain the person she recognised as Mr Strickland was Mr Strickland. She said she was aware who Mr Strickland’s brother was as she had seen him around and she was aware his wife worked at IGA where she had seen them together. She also said Mr Strickland had been really good mates with her sons playing football with them for over five years. Under cross-examination when giving evidence of Mr Strickland attacking Mr Williams she said Mr Strickland threw a punch at Mr Williams. Although she was cross-examined about this the matter was not clarified. It appears to me that under cross-examination while saying it all happened so quick she did reconfirm the punch thrown by Mr Strickland did hit Mr Williams.

1. John Isaac Grainer gave evidence of being helped by his nephew Dwayne Williams after being knocked to the ground by Mr Strickland’s brother. The reference to Dwayne and David Williams, without further clarification has left the evidence in an unsatisfactory state.

1. Mr Strickland’s evidence on this incident is less then clear and I have had some difficulty understanding a chronology of the incidents as described by him.

1. Mr Strickland appears to acknowledge an incident occurred between John Burke Grainer and that John Isaac Grainer punched him on a later occasion. It also appears his evidence is to the effect of his being struck with a stick by Lachlan Peebles occurred after the incident with John Isaac Grainer, whereas the evidence I believe is the Peebles incident occurred some time before. Mr Strickland’s evidence is as if he has rolled the earlier incident with John Burke Grainer and Lachlan Peebles into the event with Ross Boyle and John Isaac Grainer.

1. John Burke Grainer did not give evidence.

1. Did Mr Strickland punch at John Isaac Grainer first or did John Isaac Grainer punch Mr Strickland first.

1. I am prepared to accept Mr Strickland punched Mr Boyle to the ground, probably because Mr Boyle was drunk and wanting to fight who ever he could. John Isaac Grainer said Mr Strickland threw a punch at him, he retaliated. Mr Strickland then backed off. He made no mention of John Burke Grainer, David Williams or Lachlan Peebles being there. He did mention Sione Takapu, Anthony Bishop, Dwayne Williams and Mr Strickland’s brother were there. He also said at this time Mr Strickland’s brother king hit him and they got into an altercation. Mrs Grainer said (P1-70) Mr Strickland tried to hit her brother (David Williams) and that’s when John Isaac Grainer went in and hit Mr Strickland, and then Mr Strickland's brother hit John Isaac Grainer. Mrs Grainer makes no mention of her son John Burke Grainer, or Lachlan Peebles being there. Mrs Grainer also says (P1-78) “that’s when my husband (John Isaac Grainer) run in and hit Les (Mr Strickland) then”. Mr Strickland denies he fought John Isaac Grainer, that is, that he punched either John Isaac Grainer or John Burke Grainer. It appears Mr Strickland is reconstructing what happened from what his brother has told him later about what happened. He said “I was pretty surprised when my brother told me the next day, “bro, old JB Senior took a swing at you. He missed.” [Although no one has explained this I understand the reference to “old JB Senior” to be a reference to John Isaac Grainer, not John Burke Grainer.] Mr Strickland’s brother said John Burke Grainer threw a punch at Mr Strickland and missed. He then jumped in between them and fought with John Burke Grainer. He makes no mention of fighting John Isaac Grainer. Constable Milgate said he saw John Burke Grainer and John Isaac Grainer exchanging punches with Pacific Islander males. Constable Sprecher said he saw John Isaac Grainer and Mr Strickland exchanging punches.

1. The use of the abbreviation “JB” as a reference to John Burke Grainer and or John Isaac Grainer throughout the evidence is a further example of the unsatisfactory state of the evidence.

1. Tautu Strickland does not appear to give any evidence about the incident with John Isaac Grainer.

1. It appears that fight was quite brief, although Constable Sprecher says it went on for thirty (30) seconds or a minute. I accept that fight ended when John Isaac Grainer was hit by Mr Strickland’s brother.

1. I accept Mr Strickland did fight with John Isaac Grainer, as observed by Constable Sprecher, Marilyn Grainer and as stated by John Isaac Grainer, and this occurred after Mr Strickland had punched Mr Boyle. As John Isaac Grainer had made his intentions clear with the challenge to Mr Strickland to “pick on someone his own size” it is probable he did in fact throw the first punch. This is in accordance with Mrs Grainer’s evidence. If he did not Mr Strickland might be excused for attempting to avoid the imminent and obvious attack being offered to his person by striking at the aggressor, in this case John Isaac Grainer.

PUBLIC NUISANCE

1. The question to be determined by me is whether, in the circumstances that existed:

1.          When Mr Strickland was observed by Constable Milgate and told him to “fuck off cunt”, was in a rage, had his fists clenched and was beating his chest saying “come on cunts, come on”, and when he was

2.          Yelling at Aboriginal persons while looking angry and aggressive prior to brushing past Constable Sprecher, and saying “Fuck you I want to kill these fucking cunts”, and when he

3.          Punched Ross Boyle to the ground, and when he was

4.          Fighting with John Isaac Grainer

Mr Strickland’s behaviour amounted to public nuisance.

I have dismissed the other allegations which do not require further consideration.

1. 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.

1. Ordinarily calling people to fight would be regarded as acting in a threatening way, and fighting would be regarded as acting in a violent way. Telling a police officer to “fuck off cunt”, and “fuck you I want to kill these fucking cunts”, could be regarded as behaving in an offensive or threatening way.

1. 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 and: “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).

1. In Butterworth v Geddes, unreported, District Court Queensland Forde DCJ Brisbane 13^th 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”

1. In Ashton v Green, unreported, District Court of Queensland Bundaberg Judge Skoien SJDC 8^th 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”.

1. I have had reference to the decision of McGill DCJ in the matter of Couchy v Birchley [2005] QDC 334. 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 under sophistication. 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.

1. While I do not condone loutish behaviour at any time the question remains whether Mr Strickland’s behaviour would contravene contemporary standards of public order and amount to an act of public nuisance in the circumstances that existed at the time.

1. It would of course be very easy to say in the context of a near riot, anyone who was there should be found to have been committing a public nuisance offence.

1. The only language the police officers felt was directed towards them was “fuck off cunt”, towards Constable Milgate, and “fuck you I want to kill these fucking cunts”, towards Constable Sprecher.

1. It is clear the violent and threatening behaviour was not directed towards the police officers, but the Aboriginal people.

1. There is no evidence Mr Strickland’s language was heard by anyone other than the police officers, and there is no evidence of what those words meant to them, although it is open to the Court to make an inference as to the impact on the officers.

1. There is no evidence anyone observed Mr Strickland to be beating his chest other than from Constable Milgate. There is no evidence there was any reaction to this behaviour.

1. There is no evidence anyone observed Mr Strickland to be yelling at the Aboriginal people other than from Constable Milgate. There is no evidence there was any reaction to this behaviour.

1. Who is it said the offensive and threatening behaviour was directed towards, other than the police officers? It is said to be directed towards the Aboriginal people who were present. Of those who were present only a small number have given evidence and none of them have said they found Mr Strickland’s behaviour offensive or threatening.

1. Depending on who has given the evidence the number of people present during this event appears to be 5 Pacific Islander males, and between 30 and 150 Aboriginal people. All of the Pacific Islander males were involved in the melee, probably not all of the Aboriginal people were involved, some may have been supporters and spectators.

1. This behaviour could be threatening, but to who? The actions were not directed towards the police officers. There is no evidence anyone else saw the behaviour. There is no evidence anything happened as a consequence of Mr Strickland acting in this way. There is no evidence to find his behaviour was threatening to any person in any way. The evidence supports a finding that the Aboriginal people were the primary aggressors against a much smaller number of Pacific Islander men.

1. I do not believe I can infer anyone who may have been there found Mr Strickland’s behaviour offensive or threatening. Those who were there were so because they were themselves fighting, or they were encouraging the fighters to fight, or it may also be the case and some were there just to look at what was going on; the evidence does not make this clear.

1. Of course knocking Mr Boyle to the ground and fighting John Isaac Grainer would prima facie amount to violent behaviour.

1. The officers were simply going about their duty, and would I expect hear this sort of language on a regular basis. Both were male officers with several years service as a police officer. Sometimes this language might be directed at a person with particular vehemence and malice, but here it is a passing comment with no particular emphasis or intent directed at the officer. I do not believe telling Constable Milgate to “fuck off cunt”, and telling Constable Sprecher “fuck you I want to kill these fucking cunts” in the context of having just been struck in the face with a branch, and being attacked by numbers of assailants while trying to back peddle towards home amounts to offensive behaviour. There is no suggestion these words could be regarded by any one else as offensive as there is no evidence anyone heard them.

1. As I have found Mr Strickland’s behaviour was not offensive I do not believe it necessary to consider whether it was such as to interfere with the peaceful passage through or enjoyment of the place by anyone.

1. Nevertheless I make this further comment. In the absence of direct evidence, can it be inferred Mr Strickland’s behaviour interfered with or was likely to interfere with the peaceful passage through, or enjoyment of, the place by members of the public. There is no evidence anyone (other than police officers) heard or saw Mr Strickland behaving in the manner described. The event occurred on the road and footpath of the main street of Mareeba. Were there people on the footpath, or vehicles on the road? There is no evidence of any, and I am not prepared to infer that if there were or could have been any of them might have been affected by Mr Strickland’s behaviour, being as it was a small part of a group dynamic.

1. The other matters to be considered are the acts of knocking Ross Boyle to the ground and fighting with John Isaac Grainer.

1. Mr Boyle presented as a drunken nuisance, someone who was there to cause nothing but trouble. While knocking someone to the ground would amount to violent behaviour, I cannot believe in such circumstances such action should warrant criminal sanction. Being knocked to the ground would of course interfere with Mr Boyle’s peaceful passage through and enjoyment of the public place, but he was not there for peaceful purposes; he was there to fight whoever he could. There is no suggestion any one else who was there other than for the wrong reasons could have had their peaceful passage through or enjoyment of the place interfered with.

1. Fighting John Isaac Grainer would amount to violent behaviour. The evidence surrounding this event is confused. I accept however Mr Grainer threw the first punch. I can not be sure how long this fight continued for, all the evidence would suggest it was very brief, although Constable Sprecher thought it may have gone on for 30 seconds or a minute. I could not be satisfied Mr Strickland’s actions in fighting John Isaac Grainer interfered with the peaceful passage through or enjoyment of the place by any persons. The only persons present were those actively engaged in fighting the Pacific Islander men. Mr Grainer offered to fight Mr Strickland. Even if it was the case that the general population’s use of Byrnes Street was interfered with, how could the Court apportion Mr Strickland’s involvement to conclude beyond reasonable doubt his behaviour (as opposed to the behaviour of others who were all over the street) was the cause of the interference? In all the circumstances I can not be satisfied Mr Strickland’s actions in fighting John Isaac Grainer should warrant criminal sanction.

1. The Prosecution has failed to satisfy me Mr Strickland has committed a public nuisance offence.

1. The charge is dismissed and the Defendant discharged.