Preston v Parker - [2010] QDC 264

DISTRICT COURT OF QUEENSLAND

CITATION:

Preston v Parker [2010] QDC 264

PARTIES:

JOHN GRAEME PRESTON
(appellant)

v

NATHAN JAMES PARKER
(respondent)

FILE NO/S:

BD 1855/08

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

24 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2009

JUDGE:

Irwin DCJ

ORDER:

Appeal against conviction is dismissed and the order of the magistrate is confirmed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – TRESPASS – PREREQUISITE TO THE COMMISSION OF THE OFFENCE – where the appellant was convicted of one count of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) – where it was alleged that he had remained in a place used for a business purpose – where it was alleged that after being given two move on directions by a police officer he remained occupying the steps at that place – where he was arrested for contravening a direction by a police officer contrary to s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld) because of his failure to move on – where no evidence was offered on this charge and he was charged with trespass – where under s 634(3)(b) of the Police Powers and Responsibilities Act before a police officer is entitled to charge a person with trespass the officer must consider the explanation given by the person for being present at the place is not reasonable – whether the observance of the s 634(3)(b) requirement is an element of the offence – whether the observance of the s 634(3)(d) requirement is a prerequisite to the commission of the offence – whether prosecution had to prove beyond reasonable doubt that the police officer formed the view required by s 634(3)(b) – whether the arresting officer considered the explanation given and whether he considered it not to be reasonable

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – CLAIM OF RIGHT – DEFENCE OF HONEST CLAIM OF RIGHT – AVAILABILITY OF DEFENCE – where the appellant was convicted of one count of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) – where it was alleged that he remained in a place used for a business purpose – where it was alleged that he remained occupying the steps at that place – where the business at the place undertook the termination of pregnancies – where there was evidence that termination of pregnancies were scheduled to be done that day – where the appellant conceded that he entered the place and remained there – where it was submitted there was evidence of an honest belief by the appellant that he was entitled to occupy the steps to deter or prevent people from accessing termination procedures at the place – where there was evidence that he was aware he was not given any permission to occupy the steps from the time the police told him about having an official complaint from the business and he was given a move on direction – where the appellant remained in occupation of the steps after he was given two move on directions – whether the defence of honest claim of right under s 22(2) of the Criminal Code 1899 (Qld) was available

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DURESS – where the appellant was convicted of one count of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) – where it was alleged that he remained in a place used for a business purpose – where it was alleged that he remained occupying the steps at that place – where the business at the place undertook the termination of pregnancies – where there was evidence that termination of pregnancies were scheduled to be done that day – where the appellant conceded that he entered the place and remained there – where the appellant said he was occupying the steps to deter or prevent people from accessing illegal termination procedures at the place – whether there was evidence that actual and unlawful violence was threatened to any person for the purpose of the availability of a defence of compulsion or duress under s 31(1)(c) of the Criminal Code 1899 (Qld) – whether there was evidence that serious harm or detriment was threatened by another person in a position to carry out the threat for the purpose of the availability of a defence of compulsion or duress under s 31(1)(d) of the Code

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – where the appellant was convicted of one count of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) – where it was alleged that he remained in a place used for a business purpose – where it was alleged that he remained occupying the steps at that place – where the business at the place undertook the termination of pregnancies – where there was evidence that termination of pregnancies were scheduled to be done that day – where the appellant conceded that he entered the place and remained there – where the appellant said he was occupying the steps to deter or prevent people from accessing illegal termination procedures at the place – where the appellant honestly believed that illegal termination procedures were carried out at the place – where there was no evidence that any termination procedure to be carried out at the place on that day would not have been lawful on therapeutic grounds in accordance with Queensland law – where there was no evidence of apparent want of good faith on the part of any medical practitioner concerned in such a procedure – whether in the circumstances there was evidence of any objective basis for the appellant to have a reasonable belief that any termination procedure being carried out at the place on that date would be in contravention of Queensland law – whether the defence of mistake of fact under s 24 of the Criminal Code 1899 (Qld) was available in conjunction with s 31(1)(c) and/or s 31(1)(d) of the Code

Acts Interpretation Act 1954 (Qld), s 14B(1(c), s 14 (4)

Criminal Code 1899 (Qld), s 22, s 23, s 24, s 31(1)(c), s 31(1)(d), s 36, s 224, s 271, s 273, s 282, s 290, s 292, s 313(2), s 408A

Criminal Code (WA), s 22

Justices Act 1886 (Qld), s 222, s 223(1), s 225(1)

Police Act 1892 (WA), s 82B(1)

Police Powers and Responsibilities Act, 2000 (Qld), s 44, s 46, s 48, s 365(1), s 633, s 634, s 791(2), s 792

Summary Offences Act 2005 (Qld), s 11(2), s 12

Attorney-General (Ex rel Kerr) v T [1983] 1 Qd R 404, cited

Bowditch v McEwan and Ors [2002] QCA 172, cited

Butera v DPP (Vic) (1987) 164 CLR 180, cited

Coleman v Greenland, Donaldson, Powers etc & The State of Queensland [2004] QSC 037, cited

Cox v Robinson [2001] 2 Qd R 261, cited

Dobbs v Ward [2003] 1 Qd R 158, applied

Ebner v Official Trustee (2000) 205 CLR 337, applied

Fox v Percy (2003) 214 CLR 118, cited

George v Rockett (1990) 170 CLR 104, cited

Graham v Queensland Nursing Council [2009] QCA 280, applied

Jones v Dunkel (1959) 101 CLR 298, cited

K v T [1983] 1 Qd R 396 at 398, applied

Keating v Morris [2005] QSC 243, cited

Mbuzi v Torcetti [2008] QCA 231, cited

Molina v Zaknich [2001] WASCA 337; (2001) 125 A Crim R 401, distinguished

Police v Preston, Unreported, IrwinCM, Bris-Mag 00028810/03; Mag 00174208/03(4), 3 March 2004, cited

Preston v Liussi, Unreported, Shanahan DCJ, Appeal No BD4101 of 2005, 19 June 2006, cited

R v Bayliss and Cullen (1986) 9 Qld Lawyer Reps 8, applied

R v Bourne [1939] 1 KB 687, cited

R v Davidson [1969] VR 607, cited

R v Jeffrey and Daley (2002) 136 A Crim R 7, cited

R v Pollard (1962) QWN 13, cited

R v Taiters, exparte Attorney-General [1997] 1 Qd R 333, cited

R v Waine [2006] 1 Qd R 458, cited

R v Williams [1988] 1 Qd R 289, cited

Re Bayliss, Unreported, Supreme Court of Queensland, McPherson J, OS No. 376 of 1985, 24 May 1985, applied

Rowe v Kemper [2008] QCA 175, applied

Stevenson v Yasso [2006] 2 Qd R 150, cited

Vievers v Roberts; exparte Vievers [1980] Qd R 226, applied

Warden v Hensler (1987) 163 CLR 561, cited

Webb v The Queen (1994) 181 CLR 41, cited

COUNSEL:

C K Copley for the appellant
M J Litchen for the respondent

SOLICITORS:

Conroy & Associates for the Appellant
Director of Public Prosecutions (Qld) for the Respondent

Mr Preston brings this appeal under s 222 of the Justices Act 1886 (Qld) (“the JA”) against a magistrate’s decision to find him guilty of the offence of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) (“the SOA”).[1]
[1]He was sentenced to 4 months imprisonment with an immediate parole release date.

The charge brought by the respondent, Constable Parker, alleged that on 4 March 2008 Mr Preston unlawfully remained in a place used for a business purpose situated at 687 Logan Road, Greenslopes.

Grounds of Appeal

Mr Copley argues six grounds of appeal on Mr Preston’s behalf, as follows:[2]
[2]The Notice of Appeal which was prepared by Mr Preston particularised seven grounds of appeal. In the Outline of Argument on his behalf at [2], Mr Copley said that grounds 3-6 would not be relied upon. In oral argument at T1-4 L1-4 he said he would not be arguing ground 7. Ground 2A in the Outline of Argument was abandoned in oral argument (T1-3 L8-10). With reference to [3] of this outline by which, “it is also submitted … that the learned Magistrate failed to provide sufficient assistance to the unrepresented Appellant, including identifying relevant issues and defences and evidentiary and procedural matters”, in oral argument at T1-10 L8-15, Mr Copley said his point is that the magistrate didn’t properly identify the issues and take them into account in the course of her decision. Therefore this submission does not take the Ground of Appeal any further, and my decision on these grounds will address this issue.

1. The magistrate erred in finding on the evidence before her that the defendant unlawfully remained in a place at 687 Logan Road, Greenslopes on 4 March 2008.

2. The magistrate erred in not finding on the evidence before her that any proceeding for the alleged offence was invalid because no police officer complied with necessary prerequisites under s 634 of the Police Powers and Responsibilities Act 2000.

2B The learned magistrate erred in finding that proof of defences was required to [be] made on the balance of probabilities and/or by the appellant.

2C The learned magistrate erred by failing to find that the prosecution had not excluded the operation of s 22 of the Criminal Code.

2D The learned magistrate erred by failing to find that the prosecution had not excluded the operation of s 24 of the Criminal Code.

2E The learned magistrate erred by failing to find that the prosecution had not excluded the operation of s 31 of the Criminal Code.

A preliminary issue

Prior to commencing to hear the appeal I disclosed in open court to both counsel that in my then capacity as Chief Magistrate I had presided over a trial of Mr Preston[3], and I maintained a social relationship with the magistrate. After taking instructions, Mr Copley said he had no application to make. Constable Parker’s counsel, Ms Litchen, also said she did not wish to raise any issue about this.[4]
[3]Police v Preston, unreported, Irwin CM, Bris-Mag 00028810; Mag 00174208/03(4), 3 March 2004.
[4]T1-2 L18-32. Neither Ms Litchen or Mr Copley appeared in the proceedings before the magistrate. Mr Preston represented himself. A representative of the Police Prosecutions Corps prosecuted.

As Mr Preston would have been aware, on 3 March 2004, I found him not guilty of contravening a move on direction by a police officer on 23 October 2003.[5] That direction related to his attending at the same premises in similar factual circumstances to the charge which is the subject of this appeal.
[5]This was contrary to s 445(2) of the PPRA, which has now been renumbered as s 791(2).

After counsel had stated their position, I expressed my view that any lay observer or informed member of the public would not be in a position where they might consider there is any reasonable apprehension of bias on my part in continuing to deal with the matter, which involved an issue of law.[6]
[6]T 1-2 L34-42.

I remain of that view. To state the position in terms of the governing principle expressed by the High Court in Ebner v Official Trustee,[7] this is not a case in which a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to bear on the resolution of the question I am required to decide. In any event, as stated by their Honours this principle is subject to qualifications relating to waiver. Given counsel’s attitude to my disclosure, I consider this qualification would apply in this case.
[7](2000) 205 CLR 337 at 345[6] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, applied in Keating v Morris [2005] QCS 243 at [39] per Moyinhan SJA. This is in accordance with the earlier decision of the High Court in Webb v The Queen (1994) 181 CLR 41.

Legal approach to this appeal

This appeal proceeded under s 223(1) of the JA as a rehearing on the evidence given in the Magistrates Court.

It has been held[8] that:

“The central task of an appellate court in an appeal by way of rehearing is not to analyse the correctness or otherwise of the decision below, although an analysis may sometimes be helpful. It is to decide the case for itself. Often it will do so by considering only the evidence admitted at first instance. That is usually the position in appeals under s 222 of the Justices Act 1886. … That requires an appellate court to draw its own inferences from the facts established by the evidence while respecting the advantage of the court or tribunal at first instance in seeing and evaluating witnesses. This is particularly relevant when issues of credibility arise.”

[8]Graham v Queensland Nursing Council [2009] QCA 280 per Fryberg J at [69]-[70] (with whose reasons the Chief Justice agreed) discussing the dictum of McMurdo P in Stevenson v Yasso [2006] 2 Qd R 150 at [36]; [2006] QCA 40; see also Fox v Percy (2003) 214 CLR 118 at 126-127 [25]; Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2008] QCA 231 at [17].

Proceedings before the magistrate

The proceedings before the magistrate were conducted in two court rooms. This was because of the absence in the first court room of a facility to play a field tape of the conversation between Constable Parker and Mr Preston at 687 Logan Road, Greenslopes on the date of the alleged offence. This tape is exhibit 5. The proceedings in this court room were not transcribed by the State Reporting Bureau (“the SRB”). However the SRB were able to provide Mr Preston with copies of the recordings made in both court rooms. Consequently, Mr Preston prepared a transcript with the title “Transcript of Hearing 10^th June, 2008 Part 1”. This is accepted by Ms Litchen as a sufficient record of what occurred in the first court room. It is Exhibit 1.[9]
[9]T1-5L 13-43.

Exhibit 1 has been supplemented by handwritten annotations by Mr Copley and his secretary and by documents, “A”, “B” (Exhibit 2) and “C” (Exhibit 3). These were prepared by Mr Copley’s secretary from listening to the recordings. The place where Exhibit 2 fits into Exhibit 1 is clearly marked with “A” and “B”, respectively, on the face of Mr Preston’s document. Exhibit 3 commences at the end of Exhibit 1 and immediately prior to the commencement of the SRB’s official transcript. Exhibits 1-4 constitute an agreed record of the proceedings before the magistrate for the purpose of this rehearing.[10] A synopsis of the field tape was admitted as Exhibit 4. This was transcribed by Constable Parker. It has been supplemented by Mr Preston’s handwriting. Ms Litchen was agreeable to it being tendered.[11] I have used this synopsis only as an aid to understanding what the conversation on the tape is.[12]
[10]T 1-5 L 47 – T1-8L 50.
[11]T 1-23 L24 – T1-24 L 57.
[12]Butera v DPP (Vic.) (1987) 164 CLR 180 at 188.

The prosecution evidence

In addition to Constable Parker, evidence was given by his work partner, Constable McMeniman, and Ms Guy, the owner of the business at 687 Logan Road, Greenslopes.

Ms Guy’s evidence[13]

[13]Transcript of Hearing 10^th June, 2008, Part 1 (Exhibit 1) and “B” of Exhibit 2.

Ms Guy gave evidence that since 1999 she has been the owner of the business which undertakes terminations of pregnancy. Three doctors work there together with nursing sisters, clerical staff and sterilising staff. The patients who pay for services see the counsellor, an operating doctor and an anaesthetist.

On 4 March 2008 Ms Guy became aware patients were entering the premises by coming up the driveway to the backdoor, rather than walking up the stairs to the front entrance. She could see someone was sitting on these stairs obstructing them. Although she was unable to identify Mr Preston as the person sitting on the stairs, there is no issue that it was him, having regard to the evidence of Constables Parker and McMeniman, and to his own evidence.

Ms Guy said the person was sitting in the middle of the stairs which were just inside the front gate of the property.[14] She rang for police assistance to remove the obstruction so they could get on with their normal day. Her evidence was that she gave no permission for the person to be on the steps.
[14]Photos showing the stairwell and driveway which were tendered at first instance were not available to this court at the appeal. However they would not affect the outcome of the legal issues involved.

In cross-examination by Mr Preston, who represented himself before the magistrate, she acknowledged abortions were done at the premises and were scheduled to be done that day.

It was during cross-examination that she said although she thought it was him sitting on the stairs, she couldn’t see it was him. She did not approach and speak to the person. As far as she was aware no one from the business said anything to this person.

Constable Parker[15]

[15]Exhibit 3 and T3 L35 – T9 L16.

Constable Parker testified he received information to attend the Greenslopes Day Surgery at 687 Logan Road at 7.45 am. On arriving with Constable McMeniman he activated his tape recorder at 7.58 am. He referred to seeing five anti-abortion protestors on the footpath. His evidence was he saw Mr Preston approximately four steps up in the stairwell leading to the front door. The stairwell was approximately two to three metres in from the driveway facing Logan Road. Mr Preston was in the middle of the step.

Constable Parker had an initial conversation during which Mr Preston identified himself. This conversation commenced as follows:

Constable Parker: How are you going buddy? You’re not even going to let me up?
Mr Preston:Well if you go in there and arrest them, stop them killing children, stop them doing this I would let you in for sure.
Constable Parker: No mate I need to go in there and you’re stopping everybody from going in. I need to at least go in there and talk to them.
Mr Preston:Go in there and arrest them.

Following this conversation, Constable Parker entered the premises and spoke to Ms Guy. Although this conversation, which was also recorded by the tape, is not admissible against Mr Preston, it is relevant to Mr Copley’s argument in support of Ground 2 of Appeal that the requirements of s 634(3)(b) of the Police Powers and Responsibilities Act 2000 (Qld) (“the PPRA”) have not been complied with. It is clear from this conversation that he intended to give Mr Preston a move on direction under s 48 of the PPRA if he had an official complaint. This is apparent from the following conversation with her:

Constable Parker: Basically he is stopping your customers from coming in sitting there.

Ms Guy: Yes

…

Constable Parker: Well as I see it you are having to send people out the back but he is clearly interfering with your business, is that correct?

Ms Guy Yes

Constable Parker I will go give him a move on direction and see where we go from there. I will ask you know is that an official complaint and you would like him moved on.

Ms Guy: Yah.

Constable Parker: Last one he got off on a technicality, OK, so cover all bases and make sure its all done correctly; OK.

Ms Guy indicated that although the persons who wished to enter the premises had done so via the driveway, “one of the girls” had tried to get past him on the stairs.

Constable Parker then walked outside, and after confirming Mr Preston’s name and obtaining personal details, had the following conversation with him, which included giving the move on direction:

Constable Parker: John I understand you have been doing this a few times. You know that you can’t prevent people as far as a business goes, I mean, I’m not here to talk about what you’re protesting about and all that. As far as the business goes you can’t prevent people from going in and out which is what you are doing, here on the steps.

Mr Preston: I understand but I’m not making a protest here. Under section 273 I am able to come to the defence of other persons, children [a short portion of his statement at this point is unintelligible to me]. I’m coming to their defence.[16]
[16]This statement includes a reference to s 273 of the Criminal Code 1899 (Qld) (“the Code”) which is concerned with aiding in self defence.

Constable Parker: John, what I am talking about here is preventing people from coming in and out of the business, you can’t do that. I am going to give you a move on direction; we have had an official complaint by the business say that you are preventing people from coming in and out. I have witnessed people being forced to go in other directions to come in and out of here. I am going to have to give you a move on direction, do you understand that John.

Mr Preston: I do.

Constable Parker: OK, I’m now going to direct you. I now direct you to move 100 m from this location from now, the time being 0806 hours on the 4^th of the 3^rd 2008, OK, and this location being 687 Logan Road, Greenslopes. So you’re not to be within a 100 metres of here, so you’re going to have to go 100 metres away, completely away from here, OK. Is that clear to you John?

Mr Preston: Yes.

Constable Parker: So you understand that?

Mr Preston: I understand it.

Constable Parker: You understand that. So can you just relay back to me what you understand by that?

Mr Preston: I understand what you said to me but I understand [a short portion of his statement is unintelligible to me, but it involves a reference to “children”].

Constable Parker: On this topic first. What do you understand by what I just told you?

Mr Preston: I have to move 100 m from [unintelligible].

Constable Parker: You understand that this is an official move on direction by a police officer?

Mr Preston: [Unintelligible].

Constable Parker: Do you understand the reasons why I’ve given you that direction? We’ll get onto your topic, but I just want to cover this one first. Do you understand the reasons why? As a business imagine.

Mr Preston: [At this point attempts to interject. This is unintelligible to me].

Constable Parker: I know what you’re talking about here, but I just want to say to, as a business, anything like, just say with Coles and somebody stopping people.

Mr Preston: I wouldn’t.

Constable Parker: Just think, just think about it, somebody stopping people going in the door and they won’t move no matter what anybody does, that’s what I’m talking about, you’re preventing a business from being a business.

Mr Preston: A legitimate business, I have no problems with. I wouldn’t do it. Obviously I wouldn’t go and sit in front of Coles. But Coles don’t do….

Constable Parker: I know. I know. Like I said we’ll get on with that topic with you, if you wish. But we just got to cover this topic first.

Mr Preston: I fully understand you’re position. I know what you’re saying.

Constable Parker: Do you need some time to think about it?

Mr Preston: No

Constable parker: Are you going to move for me John. You’re not going to move?

Mr Preston: How do you walk away from that?

Under cross-examination, Constable Parker agreed that at this point Mr Preston showed him clearly on two posters he was holding, pictures of babies that were aborted; and said “That’s what’s going on here.”[17]

[17]T7 L5-13. Although I cannot make these words out on listening to the tape, I proceed on the basis of Constable Parker’s evidence that they were said.

Constable Parker then encouraged Mr Preston to think about the direction. Before leaving him to think about this, Constable Parker said:

“What I’ll let you know is that it is an offence to contravene that move on direction, OK. I’m now giving you a direction. You’ve stated that you understand it. I’m going to give you time to think about it, OK. If you choose not to obey my direction to move on here for the official reason I’ve given you, then you will be arrested for contravening a direction, contravening a requirement or direction by a police officer, OK. I don’t want to have to do that to you, OK …..

This lead to the following conversation:
Constable Parker: Do you understand that, do you understand my position.

Mr Preston: I understand that. I realise it’s not an easy position for you but, ah, that’s the reality of what’s going on here. 10 to 15 children are likely to be killed here today. How do you walk away from that?

Constable Parker: Unfortunately, I can’t let you sit there and do this.

Mr Preston: I realise you’re in a difficult position too, but I hope you can understand why I am here and why I can’t leave.

Constable Parker: I understand why you are here, but I can’t let you sit there and do this.

…

Constable Parker then gave Mr Preston the further time promised, although Mr Preston made it clear he would not be leaving.

Constable Parker returned at 8.25 am to find Mr Preston had not moved. Having confirmed that Mr Preston understood the direction and the reason for giving it was, “interfering with a business”, he gave him a second direction to move 100 metres from the location, immediately. He told Mr Preston he was giving him another 5 minutes to comply, and if he did not do so he would be arrested at the expiration of this period. Before leaving on this occasion Constable Parker had the following conversation with Mr Preston:

Constable Parker: … Look there is a lady right now, she’s trying to get past.

Mr Preston: I will let people leave, don’t worry.

…
I want everybody to leave. They are welcome to go so I won’t stop people leaving.

Constable Parker: So what are you doing? Are you just not letting them in?

Mr Preston: Yah, if nobody goes in nobody dies.

Constable Parker: OK, so you are just not letting people in?

Mr Preston: Yah, as I say I would be happy for everybody to leave this place and not come back [unintelligible].

…
Well it’s one of those things you got to try to do, whether [unintelligible] or not. If I was driving down the road and saw a child being killed on the roadside I would stop to try and help. If the child died anyway I wouldn’t regard it as a waste of time. So regardless of whether I am able to stop people or not it is still the right thing to do. You know someone’s going to be killed you’ve got to help them.

Constable Parker left again at 8.28 am.

After re-activating the tape at 8.30 am, Constable Parker told Mr Preston he could not give him any more time, and arrested him under s 791(2) of the PPRA for contravening a direction by police.[18]
[18]On 20 May 2005, before a different magistrate, a police prosecutor offered no evidence on this charge. It was dismissed. The charge of trespass was presented on the same date. Mr Preston who was present pleaded not guilty to it, but observed this was the first time he had been told of the charge.

While the tape was still running as Mr Preston was transported to the watch house, Constable Parker can be heard saying:

“I hear where you’re coming from Graham. But unfortunately we have to sort of enforce all the laws as well mate, and I tried to give you as much time as I could. I gave you pretty much a full half hour.”

Constable Parker said in his evidence-in-chief that he saw Mr Preston in the same location on each occasion they spoke. His evidence was he gave the move on direction on the basis that Ms Guy informed him she did not wish Mr Preston to be on the premises.

The cross-examination of Constable Parker commenced with the following three questions and answers:[19]
[19]T6 L30-36.

“Constable Parker, why did I say I was there? -- To protect the lives of persons that were inside the business there.
Specifically who did I say? -- Children
And unborn children, in particular. -- Yes”

Although on my understanding of the tape recorded conversation, in so far as it is intelligible to me, these are not the precise words used, I consider this conveys the effect of what he said to Constable Parker. It is relevant to the issue arising concerning compliance with s 634(3)(b) that this was Constable Parker’s understanding about what Mr Preston was saying to him.

When Mr Preston asked, “Why did you say you were going to arrest me? Constable Parker replied, “You were trespassing on the premises there who – who, after I’d entered had told me that they didn’t wish you to be on those premises that they had there, as you were committing ….. an offence.”[20]
[20]T7 L21-27.

However, Constable Parker accepted he had never used the word “trespass” and had simply asked him to move on. He said, “I told you that I was giving you a move on direction … as I’d had an official complaint – or as I had received a complaint from the business owner.”[21] This position is summarised by the following question and answer:[22]

“So even though there was never a suggestion in words that I was trespassing I have now been charged with trespass? -- Yes.”

[21]Ibid L28-40.

[22]Ibid L57-58.

Constable Parker expressed the reason that having been arrested for contravening a direction, Mr Preston was facing a charge of trespass, …[23]

“You were initially charged with the contravene a move on direction, however, the charge has been changed in relation to facts that I wasn’t aware of at the time.”

[23]Ibid L52-55.

Mr Copley also relies on the following exchange in cross-examination in support of his submission on the issue of compliance with s 634(3)(b):[24]

“All right. And can you tell me why you ignored my request to arrest those people who were carrying out activities as I showed you in these pictures? -- I’m not an expert in the area of foetuses, but if they’re – it’s a business there that’s operating legally they were committing – they were – they weren’t committing a crime, as far as I understand, as they were operating as a business legally.
But you made no attempt to find out if that was the case or not, eh? -- What do you mean by that?
Whether or not what they were doing there was, you know, that killing children was allowable or not? -- The abortion process – the – abortion clinic functions, as I understand, is entitled to operate as it is on foetuses that are under a certain month or trimester, and therefore they’re operating legally.”

[24]T8 L1-18.

He confirmed he did not follow up arresting these people; and he had no suspicion Mr Preston would commit any offence such as burglary there.

Constable McMeniman[25]

[25]T 10 L1- T12 L40.

Constable McMeniman, who was a police recruit at the time, also gave evidence of seeing Mr Preston sitting on about the fourth step of the entrance of the building, and not moving from there for the period during which Constable Parker had the three conversations with him.

In cross-examination he agreed Mr Preston said something to the effect of being there “to stop unborn children from being killed” and of “coming to their defence as under section 273 of the Code allows.”[26] He also agreed Mr Preston was holding a sign and picture of aborted babies and said, “How can you walk away from this?”[27] He recalled Mr Preston encouraging him and Constable Parker to arrest the people carrying out these acts.[28] Constable McMeniman’s explanation as to why Mr Preston was told he was going to be arrested was:[29]

“Well Constable Nathan Parker had informed you – on – on arrival we’ve actually spoken to the manger of – of the building – of the – of the premises and she’s actually informed that – and you actually stated to us that you were actually refusing people to get past and it was actually difficult for us to get past you and that she was – yeah, actually you were causing anxiety to people entering the place and she wanted you removed, so – and that’s basically what we did, just -----”

[26]T11 L56 – T12 L2.

[27]T12 L7-13

[28]Ibid L15-17.

[29]Ibid L19-27.

He confirmed that Mr Preston was told he would be charged with contravening a direction, and was never told by anybody he was trespassing.[30]
[30]Ibid L29-35.

Mr Preston’s evidence[31]

[31]Ibid L1-T15 L52.

Mr Preston’s evidence-in-chief succinctly stated that he sat on the stairs:[32]

“… with the intention of preventing access to that place in view of section 273 of the Criminal Code. I was coming to the defence of others, namely, the unborn children that were going to be killed there by abortion.”

[32]Ibid L15-19.

During cross-examination Mr Preston agreed he was the person sitting on the steps at the Greenslopes Day Surgery on 4 March 2008, approximately in the position described by the police officers. He also agreed to remaining there from 8.05 am to 8.32 am despite receiving the direction, which he understood, to leave the premises by immediately moving 100 metres away.

He accepted he did not have any permission from the owner to be on those steps.

He also accepted that at one point somebody pushed past him on the stairs, and he saw people walk past him down the driveway. He conceded he did not know the people and why they were there, and he didn’t ask them for their reasons. Although he did say to them abortion is wrong and children shouldn’t be killed.[33] He did not think that any of the people responded to this.
[33]Although T15 L36 attributes the answer to him, “children shouldn’t be called.” in context this is logically a mishearing of “children shouldn’t be killed”. (My emphasis).

At the conclusion of cross-examination, Mr Preston was allowed to add that at no point did anybody from the business speak to him or come anywhere near him. He said Constable Parker was the only person who spoke to him.

Mr Preston’s submissions[34]

[34]T16 L36 – T25 L5. Reference is made to his reply at T30, L34 – T31 L7 to the prosecutor’s submissions.

Consistent with Ground 1 of Appeal, Mr Preston submitted the prosecution had not established that he had unlawfully remained at 687 Logan Road, Greenslopes. In doing so, he conceded he did enter the place and remain there.[35]
[35]T16 L36-40.

His argument in support of this conclusion demonstrates what lay behind his statements to Constable Parker that under s 273 of the Code he was able to come to the defence of other persons in the context of exhorting the police officers to go and arrest people within the building to stop them killing children. This is also relevant to the issue of whether Constable Parker had complied with the necessary pre-requisites under s 634 of the PPRA which is the subject of Ground 2 of Appeal. Although I note, Mr Preston did not refer to s 634 in his submissions to the magistrate.

He submitted that by sitting on the steps in an attempt to block the entrance to what he described as “that abortion clinic”, he was aiding, under s 273 of the Code, in the defence of unborn children who were taken to be killed there by abortion that day. He supported this with reference to Ms Guy’s testimony there were going to be abortions done there that day. He did not dispute there may have been people going there who were not having abortions. His point was that it was agreed at least one unborn child was to be killed that day, and he was there to defend whoever this was, and because he knew this, the death was imminent.

His argument was that s 273 and s 290 of the Code[36] not only entitled him, but obliged him to do this. In his submission s 290 imposed a duty on him to save human lives, including the unborn child.
[36]Section 290 (Duty to do certain acts).

In his submission s 292[37] of the Code does not support an assumption that an unborn child is not a person. He argued it does not define when a child becomes a person; and does not exhaustively define when a child becomes a person capable of being killed, but defines one circumstance when this is the position. He also contended that the use of “person” in s 273 cannot be equated with a person capable of being killed under s 292.
[37]Section 292 (When a child becomes a human being).

It was submitted that if the position of an unborn child is not covered by the Code, the common law is applicable. He submitted the common law has evolved to the extent of it being no longer acceptable in a civilised society that a child is not recognised as a person before birth. He contended this is particularly so because medical science may now provide competent proof as to whether the foetus was alive at the time of a defendant’s conduct and whether the conduct was the cause of death. Therefore, he argued, the better rule is that infliction of pre-natal injuries resulting in the death of a viable foetus before or after it is born, is homicide.

He also referred to s 313(2)[38] of the Code in support of the proposition that life begins before birth.
[38]Section 313 (Killing unborn child).

On this basis he submitted that an assault on an unborn child is an assault on a person within s 273. He also argued it would be lawful under s 271 of the Code for an unborn child to resist assault. In this regard he contended the ability to defend oneself is irrelevant. Therefore, it was lawful on his part under s 273 to sit on the steps for the purpose of physically preventing an assault on the unborn children who were taken past this point on the day, and in light of Ms Guy’s evidence, it was at the very least a reasonable belief that abortions were done there, and would be done on this day.

Further, he submitted the essential element of the offence created by s 313(2) is the killing of an unborn child, and not the assault against the mother. He contended that because one person cannot give consent for a criminal act to be done to a second person, the section has the effect that a woman cannot give lawful consent to an abortionist to kill her baby. Therefore, s 313(2) effectively endorses the proposition that anyone should be able to be charged with homicide of an unborn child.

He relied on Bowditch v McEwan and Ors[39] to argue it is untenable that a woman can have a duty of care to her unborn child, but could be allowed to have the child killed by abortionists.
[39][2002] QCA 172.

He also supported his argument he was not acting unlawfully in coming to the defence of an unborn child who is about to be killed by reference to the Universal Declaration of Human Rights and the Declaration of the Rights of the Child.

With reference to his proposition that the death of pre-born children was imminent, he submitted:[40]

“… I was not merely sitting in, but rather I was coming to the defence of others, others being pre-born children who were going to be unlawfully killed. Lord Denning stated in the case of Southwood Londonderry Council v Williams that, “There is authority for saying that in the case of great and imminent danger in order to preserve life the law will permit an encroachment on private property.” That was the case that day. Pre-born babies were scheduled to be killed there that morning and my action of sitting on the stairs was one intended solely to try and preserve their lives.”

[40]T24 L49-T25 L4.

With reference to s 11(2) of the SOA under which he was charged he said, consistent with the Explanatory Notes to the Summary Offences Bill 2004, that this is essentially a trespass provision and is a pre-emptive measure against offences such as burglary. His point was there was no evidence or suggestion it was believed he was going to commit such an offence. Although, as he has recognised, the explanation also states the provision does not rely on an intent to commit a crime within the property entered.

He also submitted s 12 of the SOA was more applicable to what actually happened because, consistent with the Explanatory Notes, it is designed to apply to demonstrations or sit-ins. However, he recognised he was not charged under this provision because he was alone. He asserted this created an injustice in relation to sentencing if he was convicted because it made him liable to a maximum penalty of one year’s imprisonment under s 11(2), whereas if two or more people had been involved he would only have been liable to six months imprisonment under s 12.

The prosecutor’s submissions[41]

[41]T25 L7-T30 L26.

The prosecutor commenced by correctly stating that the identification of Mr Preston as the person sitting on the stairs was not an issue.

Having said that Constable Parker asked Mr Preston to remove himself from the stairs in the form of a direction, “which ultimately he didn’t have to do,”[42] the prosecutor adverted to s 634. However, I agree with Mr Copley that the prosecutor misconstrued the effect of s 634,[43] when saying the safeguards applicable to s 11(2) of the SOA merely required Mr Preston to explain why he was there and be given an equal opportunity to leave the premises.
[42]T25 L15.
[43]Outline of Argument on behalf of the appellant, [20].

The prosecutor referred to the example given for the purpose of s 792[44] of the PPRA that:

“An occupier of place who may remove a trespasser from the place asks a police officer to remove the trespasser. The police officer, when removing the trespasser at the occupier’s request is performing a function of the police service.”

It was submitted Constable Parker had complied with all requirements, and that Mr Preston’s failure to leave despite the opportunities he was given over approximately 30 minutes, involved his remaining in the place. The prosecutor also submitted there was no dispute that the place was being used for a business purpose because of the evidence it was an abortion clinic.

[44]Section 792 (Performance of duty).

As Mr Preston’s evidence was that he had no permission to be there, it was submitted, the only question was whether he had remained there unlawfully. As to this, it was submitted there was no evidence that any of the sections under the Code which were relied upon by Mr Preston applied.

It was submitted that s 273 of the Code did not apply because Mr Preston’s evidence was he did not know why any of the people who walked past him down the driveway, or the person who pushed past him on the stairs, were there; and there was no evidence of an imminent danger to any people.

So far as Mr Preston’s submission that he at least had a reasonable belief abortions would be done there on this day, the prosecutor said this was not particularised in terms of any particular person, and in any event this abortion would be lawful.

With reference to s 292 of the Code it was submitted there was no evidence that Mr Preston was coming to the aid of a child who had become a person under that section.

It was submitted there was no evidence of any danger to human life for the purpose of s 290 of the Code.

No submission was directed to the interpretation or application of s 313(2) of the Code.

The prosecutor also made the obvious point that Mr Preston had not been charged under s 12 of the SOA because there were not two or more persons gathered.

The magistrate’s decision

Although the magistrate recognised the prosecution bears the burden of proof to the criminal standard she said at the outset of her decision that a defence raised by Mr Preston, if available, “would require proof on the balance.”[45]
[45]Decision, T2 L45-47.

Her Honour found that the steps on which Mr Preston took his position were a place used for a business purpose which was owned by Ms Guy.

She found that the police, having attended by Ms Guy’s authority, gave a misconceived move on direction which was not available to them, the premises being private property. However, she considered little turned on this because there was no requirement in s 11 of the SOA for a direction to leave to be given before the offence could be made out.

She considered that “remain” has its normal meaning of “to stay” in the statute. Having also found that Mr Preston had stayed there for at least 30 minutes, she considered the issue for determination was whether his attendance at the place was unlawful for the purpose of the SOA, in the sense of being “without authorisation, justification, or excuse by law.” Having regard to the tape, she proceeded on the basis he was at the premises for the purpose of “Coming to the defence of unborn children.”

Her Honour noted that Mr Preston informed the police he relied on s 273 of the Code. In relation to this provision she said that other than Ms Guy’s acknowledgement the premises is a place where abortions are performed when patients come to the place, there is no evidence about the basis of any belief on his part, reasonable or otherwise, that a person was the subject of an assault. She then said:[46]

“This is not a case where imminent danger is a relevant issue and the cases concerning that. This charge is one of trespass, not of assault. No force is alleged to have been used. Section 273 is not a relevant defence.”

[46]Decision, T5 L53-T6 L3.

She considered the “defence of justification”, as she described it, must be considered objectively in the context of the circumstances of the case. As she put it:[47]

“The action must be justified at law, and not simply in the mind of the actor. The issue to be determined is whether there is justification at law for Mr Preston’s action in remaining at the business premises.”

[47]Ibid, T6 L13-20.

Her Honour concluded the charge was made out in circumstances where, in her view, he provided no evidence of unlawful activity at the premises other than a general assertion he believed an offence was to be committed under s 313(2) of the Code, and the police declined to take any steps with regard to this; and where he had provided no reason or excuse recognised by law as justification for his conduct in remaining at the premises.

Her Honour made no express reference to Mr Preston’s reliance on ss 290 and 292 of the Code in the course of her reasons.

She did not address s 634, despite the reference to it in the prosecutor’s address.[48] Because compliance with this provision was at least a prerequisite to Constable Parker starting a proceeding against Mr Preston for the offence under s 11(2) of the SOA, I consider her Honour was in error in not doing so.
[48]Outline of Argument on the appellant, [21].

I agree with Mr Copley that the reference at the outset of her decision that a defence “would require proof on the balance” is at odds with the well established principle that the Crown must negative any defence raised on the evidence beyond a reasonable doubt.[49] It is unclear whether this was intended by the magistrate to refer to a requirement for Mr Preston to establish any defence relied on by him, on the balance of probabilities, or to discharge the evidential onus to this standard of proof. In either case the magistrate was in error. It cannot be excluded that by misdirecting herself in this way it affected her ultimate conclusion. It is conceded on behalf of Constable Parker that this observation by the magistrate was in error.[50] However, accepting as I do that Ground 2B of Appeal is made out, as the appeal is by way of rehearing, I proceed to decide the case for myself on the evidence admitted at first instance in accordance with the principles set out in para [9] of this judgment.

Submissions for the appellant

[49]Ibid, [27]. See R v Taiters, exparte Attorney-General [1997] 1 Qd R 333 at 336, with reference to the excuse raised by s 23 of the Code.

[50]Amended Outline of Submission on behalf of the Respondent - [5.29].

Compliance with section 634 of the PPRA[51]

[51]Outline of Argument on behalf of the appellant, [6]-[22], T1-11 L1, T1-30 L 10; T1-46 L48-52; T1-47 L10-30.

Mr Copley’s argument is the prosecution failed to establish beyond reasonable doubt that police formed the view required by s 634(3)(b) of the PPRA and for this reason, as asserted in Ground 2 of Appeal, the proceeding for the alleged offence against s 11(2) of the SOA was invalid.

He first refers to s 11 of the SOA which relevantly provides:

“11 Trespass
…
(2) A person must not unlawfully enter, or remain in, a place used for, a business purpose.
Maximum penalty – 20 penalty units or 1 year’s imprisonment.
Note –
See the Police Powers and Responsibilities Act 2000, section 634 for safeguards applying to starting proceedings for particular offences in this division
…”

He then refers to s 634 of the PPRA which is cross-referenced in the Note to s 11 of the SOA, and as such is part of the latter Act.[52] It is within Chapter 20 Part 3 Division 3 of the PPRA. Chapter 20 and Part 3 are headed “Other Standard Safeguards” and “Other Safeguards” respectively. Section 634 which is headed “Safeguards for declared offences under the Summary Offences Act 2005” provides:
[52]See s 14(4) Acts Interpretation Act 1954 (Qld).

“(1) This section applies to an offence under the Summary Offences Act 2005 that is a declared offence for this Act.
(2) A police officer who suspects a person has committed a declared offence must, if reasonably practicable, give the person a reasonable opportunity to explain –
(a) if the offence involves the person’s presence at a place – why the person was at the place …

(3) If –
(a) the person fails to give an explanation; or
(b) the police officer considers the explanation given is not a reasonable explanation;

or
(c) because of the person’s conduct, it is not reasonably practicable to give the person a reasonable opportunity to give an explanation;
Example for paragraph (c) –
It may not be reasonably practicable to give the person a reasonable opportunity to give an explanation because of the person’s conduct, for example, the person may be struggling or speaking loudly without stopping.

the police officer may start a proceeding against the person for the declared offence.
(4) In this section –
declared offence means an offence against section 11, 12, 13(1), 14, 15, 16 or 17 of the Summary Offences Act 2005.” (My emphasis.)

It is apparent that s 634 applies to the offence with which Mr Preston is charged under s 11(2) of the SOA.

It is submitted the requirements of s 634(3) are “safeguards” against, or barriers to, the commencement of proceedings for any and every trespass, and therefore are a prerequisite to bringing a prosecution under s 11(2) of the SOA.

Mr Copley submits these safeguard requirements established by Parliament must be met, and proved by the prosecution to be met. It is said that ss 5 and 7 of the PPRA[53] are relevant. He emphasises no exception or leeway is given to police in relation to these requirements.
[53]Section 5(e) of the PPRA makes it a purpose of that Act to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under the Act. Section 7 expresses Parliament’s intention that police officers comply with the Act in exercising their powers and discharging their responsibilities under it, and indicates that, an officer who contravenes it may face legal consequences: see Rowe vKemper [2008] QCA 175, [75] per Holmes JA.

It is submitted that not only is s 634(3) the operative mechanism by which the “safeguard” intended by Parliament would be implemented, but the police officer’s state of mind required by that provision is effectively an element of the offence under s 11 of the SOA, required to be proven beyond reasonable doubt.

Rowe v Kemper[54] is relied upon to support these submissions. This case concerned the consideration of what was required to be established to entitle a police officer to give a move on direction under what was then s 39 of the PPRA.[55] The background to this decision was expressed by McMurdo P as follows:[56]

“A police officer may exercise the power under s 39 of the Act to give “any direction that is reasonable in the circumstances” to a person “doing a relevant act”. A “relevant act” includes where a police officer reasonably suspects a person’s behaviour falls within one of the behaviours described in s 37(1)(a) to (d). It follows from the clear terms of s 37(1) that, before relying on s 37(1) to exercise the “move on” power under s 39, the police officer must personally form the suspicion that the person’s behaviour is or has been within one of the categories of behaviour described in s 37(1)(a) to (d) and that suspicion must be objectively reasonable. That is, it must be based on facts which would create a reasonable suspicion in the mind of a reasonable person: Tucs v Manley.” (My emphasis.)

[54][2008] QCA 175.

[55]Renumbered as s 48.

[56][2008] QCA 175 at [6]. Section 37 is renumbered as s 46.

McMurdo P then said with reference to the facts of that case:[57]

“[17] The magistrate found “that there existed a foundation also for the exercise of the section 39 power by Constable Kemper pursuant to section 37(1)(c)”. His Honour seems to have so concluded because Constable Kemper reasonably suspected that Mr Rowe’s behaviour was disorderly to Constable Kemper and his police colleagues. This conclusion requires findings proven beyond reasonable doubt both that Constable Kemper subjectively suspected this and that his suspicion was objectively reasonable.
…
[20] Nor did the prosecution establish on the evidence beyond reasonable doubt that Constable Kemper actually formed a suspicion that Mr Rowe’s behaviour was disorderly in respect of himself and his police colleagues. That is because Constable Kemper’s evidence (that he regarded Mr Rowe’s argumentativeness towards him and his police colleagues as, in his words) “no problem”, at least throws real doubt on whether he actually formed the suspicion.” (My emphasis.)

[57]Ibid, [17] and [20].

Reference was also made to the judgment of Holmes JA as to the effect of non-compliance with what was then s 391 of the PPRA,[58] which set out the following steps where a s 39 direction was given:
[58]Renumbered as s 633 and amended slightly. See Ibid, footnote 27.

“s 391 Safeguards for directions or requirements
(1) This section applies if a police officer gives someone a direction or makes a requirement under this Act.
(2) If the person fails to comply with the direction or requirement, a police officer must if practicable warn the person –
(a) it is an offence to fail to comply with the direction or requirement, unless the person has a reasonable excuse; and

(b) the person may be arrested for the offence.
(3) The police officer must give the person a reasonable opportunity to comply with the direction or requirement.”

Holmes JA considered that a reason for concluding that Constable Kemper could not have formed the necessary reasonable suspicion of an offence to entitle him to arrest Mr Rowe was his non-observance of the requirements of s 391 before doing so.[59]
[59]Ibid, [74].

After referring to the effect of s 7 of the PPRA and the fact s 391 was silent as to the immediate and practical consequences of failure to comply with its requirements, her Honour said:[60]

“… I doubt that compliance with the s 391 requirements is a necessary component to a lawful direction. I have however, come to the conclusion that those requirements, and whether they have been observed are relevant to whether any offence of contravening the direction is committed.”

[60]Ibid, [76].

Her Honour then referred to the purpose of the Act set out in s 5(e), and said:[61]
[61]Ibid, [76]-[79].

“[76] … The requirements of s 391, described in the section’s heading as “Safeguards”, meet that purpose. It is consistent with the notion of rights protection that an individual to whom the direction is given should not be regarded as having contravened it until those safeguard requirements have been observed.
[77] In addition the sequence in which the steps prescribed by s 391 are set out is instructive. The police officer must first give the direction, and then, if practicable, the dual warnings that it is an offence to fail to comply without a reasonable excuse and that the person may be arrested. What follows is the giving of a reasonable opportunity to comply. The section’s current equivalent, s 637, refers to a “further reasonable opportunity”. In my view the amendment simply makes express what was previously implicit: that where it is practicable to give warnings, the direction, warnings, and an opportunity to comply, having been warned, must be given in that order. It is rational to suppose from the requirement of an opportunity to comply, that if the opportunity is not given, the direction has not been contravened. Since the relevant opportunity is to comply having been given the benefit of the warnings (where practicable), it follows that both warnings and opportunity must precede any contravention.
[78] That construction, that observance of the s 391 requirements is a prerequisite to the commission of any offence, is consistent with the authorities cited by the applicant, more particularly Cox v Robinson. Coleman v Greenland, Donaldson, Powers, etc & the State of Queensland was a civil action against police officers for assault and wrongful arrest. The plaintiff was arrested for failing to comply with a direction given under s 1074 of the Local Government Act 1993. Section 1074 which was headed “Direction, Power of Police Officers about Malls”, enabled a police officer to give a direction in certain circumstances. The section provided,
“when giving the direction the police officer must warn the person that it is an offence not to comply with the direction”.

Cullinane J took the view that that requirement was “mandatory and a prerequisite to the commission of the offence” of non-compliance with the direction.
[79] Cox v Robinson concerned s 57 of the Police Powers and Responsibilities Act 1997, sub-section 1(b)(ii) of which enabled a police officer to require a person to attend a police station to enable his or her identifying particulars to be taken. Sub-section 3 stipulated, “a police officer must warn the person it is an offence to contravene a requirement under sub-section 1(b)(ii)”. This Court held that the warning was “an essential part of a valid requirement under s 57(1)(b)(ii) and should be regarded as an ingredient of the offence” of non-compliance with the requirement.” (My emphasis.)

Mr Copley does not argue that the police failed to comply with s 634(2) (a police officer who suspects a person committed a declared offence must if reasonably practicable, give the person a reasonable opportunity to explain), but directs his attention to the asserted failure to comply with s 634(3), and in particular sub-section (3)(b). He accepts s 634(3)(a) does not apply (because the applicant did not fail to give an explanation for his presence on the steps). It is also accepted that s 634(3)(c) (it is not reasonably practicable to give the person a reasonable opportunity to give an explanation) clearly does not apply.

Hence it is submitted, the police may only have started a proceeding against Mr Preston under s 11(2) of the SOA if the requirements of s 634(3)(b) were complied with.

It is asserted the requirements were not complied with because there was no direct evidence that a police officer subjectively considered Mr Preston’s explanation was not reasonable.

Although Mr Copley accepts that in some circumstances there will be evidence from which an inference may be drawn that a police officer had the requisite state of mind,[62] he argues that in this case it cannot be inferred that the police turned their minds to this question.
[62]T1-20 L1-20 L10-38.

In support of this he emphasises they initially charged Mr Preston with contravening a direction because of his failure to move on. Therefore, he argues it is unlikely that any consideration was given to whether his explanation was reasonable or not.

Further, he refers to Constable Parker’s evidence about what he thought constituted lawful abortion in Queensland, in terms that “the abortion clinic functions, as I understand, is entitled to operate as it is on foetuses that are under a certain month or trimester, and therefore they’re operating legally.” Mr Copley describes this as a mistaken view that there exists in Queensland some provision for lawful abortion on demand.[63] Therefore, he argues that even as late as the trial (and so also probably prior to the hearing), Constable Parker was virtually incapable of assessing the reasonableness of Mr Preston’s explanation for being on the steps because of his lack of legal knowledge.
[63]He submits this is completely at odds with ss 224 and 228 of the Code, and R v Bayliss and Cullen (1988) 9 Qld Lawyer Reps 8. Reference is also made to s 313(2) and s 292 of the Code, and Bowditch v McEwan & Ors [2002] QCA 172, esp at [12].

He also refers to Constable McMeniman’s evidence as to why Mr Preston was told he was going to be arrested as set out at para [34] above, and in light of it submits that he perhaps had no view on what the state of the law in Queensland is.[64] He also says “one wonders what the police were thinking at all on that day.”[65]
[64]T1-27 L27-29.
[65]T1-22 L50-52.

It is also submitted that as the prosecutor adverted to s 634 in his closing address, but did not adduce evidence from the police on the issue, the reasonable inference which can be drawn according to the rule in Jones v Dunkel[66] is that they could not have given any evidence which would have assisted the prosecution case.[67]
[66](1959) 101 CLR 298.
[67]T1-27 L38-45.

Accordingly, it is submitted the prosecution did not and could not prove beyond a reasonable doubt that the police formed the view required by s 634(3)(b) of the PPRA.

Section 22 - Honest claim of right[68]

[68]Outline of Argument on behalf of the appellant, [28]-[47], T1-34 L30.

As a general proposition, it is submitted the magistrate failed to advert to the relevant defences raised by the evidence, and if she had done so, she would have found the defences were not excluded by the prosecution beyond reasonable doubt.[69]
[69]T1-30 L42-48.

This relates to the requirement under s 11(2) of the SOA that “a person must not unlawfully … remain in …a place …” (My emphasis.) Schedule 2 of the SOA defines “unlawfully” to mean “without authorisation, justification or excuse by law.” Therefore, the onus lies on the prosecution to exclude beyond reasonable doubt any excuse raised by the evidence.[70]
[70]R v Taiters, exparte Attorney-General [1997] 1 Qd R 333 at 336.

The first such excuse which it is submitted was not excluded beyond reasonable doubt is provided by s 22(2) of the Code which states:

“ … [A] person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.”

Reference was made to R v Pollard[71] where the applicant was charged under s 408A of the Code with unlawful use of a motor vehicle without the consent of the owner, and without the consent of any person in lawful possession thereof. On the evidence the applicant knew the owner of the motor vehicle had not consented to his using it, but believed the owner would not have any objection to his doing so and would have consented to this if asked. The short point which arose for consideration was if the question of whether the applicant took the vehicle in the exercise of an honest claim of right under that section should have been left to the jury. In answering this question in the affirmative Gibbs J (with whom Stanley and Hanger JJ agreed), expressed the oft quoted dictum:[72]

“An accused acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing.”

[71][1962] QWN 13.

[72]Ibid at 29.

In R v Pollard Gibbs J also said:[73]

“It is well settled that a claim of right sufficient to relieve a person of criminal responsibility need only be honest and need not be reasonable (Clarkson v Aspinall; Ex parte Aspinall ([1950] St R Qd 79, at 89)); “the fact that it is wrongheaded does not matter”: R v Gilson and Cohen ([1944] 29 Cr App R 174 at 180). In Rex v Bernhard ([1938] 2 KB 264 at 270) the Court of Criminal Appeal said that a person has such a claim of right “if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact.”

[73]Ibid.

Consistently with this, in R v Jeffrey & Daley[74] to which Mr Copley also refers, Jerrard JA (with whom McMurdo P and Atkinson J agreed) said:[75]

“While …[a] … claimed belief must be honestly held to raise a defence under s 22, it does not matter if the right asserted by the belief is one which is unfounded in law or fact … An honestly held belief in a claim of right … although unfounded or unreasonable, would relieve … from criminal responsibility …”

R v Williams[76] in which McCrossan CJ said[77] “an honest claim may, … stem from a belief which the law does not recognise” is also cited by Mr Copley.

[74](2002) 136 A Crim R 7.

[75]Ibid at 12.

[76][1988] 1 Qd R 289.

[77]Ibid at 295.

I was also referred to the following passages in R v Waine[78] where the appellant, who was convicted of wilful damage of huts owned by the Director-General of the Department of the Environment, claimed she believed she was authorised to do the damage by another person who was allowed by the trial judge to assert an honest claim of right to deal with the property on the basis of a claim of native title. In discussing whether the trial judge should also have left a defence under s 22 of the Code to the jury in the case of the appellant, Keane JA (with whom McMurdo P and Wilson J agreed) said:[79]
[78][2006] 1 Qd R 458.
[79]Ibid, [23]-[29] at 462-463.

“[23] … what is required to raise the possibility of a defence under s 22(2) of the Criminal Code is an honest claim by the accused to an entitlement in, or with respect to, property. It may be, although it is not entirely clear, that this claim must be one which is peculiar to the person asserting it. It is clear, however, that it is not necessary that the right claimed be one known to the law.
[24] It is also clear that the defence afforded by s 22(2) is “not limited … to offences by which the offender obtains possession of property. The defence is available when the offence relates to the damaging or destroying of property …”
[25] [A]n honest claim of right may be made, not only as a claim to a proprietary or possessory right in property, but also as a claim to be entitled to act in respect of property. What is important is the honest belief that one is legally entitled to do to the property that which one is doing. That belief as to entitlement may come equally from the consent of the owner, or from a person believed to be the owner, as well as from a mistaken belief as to one’s own title.
…
[27] In the present case, the issue was whether the appellant, as a person dealing with property in a manner authorized by Aboriginal persons asserting ownership of the cabins, could raise a defence under s 22(2) of the Criminal Code by claiming to deal with the huts in accordance with the consent of those persons. In my respectful opinion, in such a case, the accused falls within the dictum of Gibbs J in R v Pollard: …
“An accused person acts in the exercise of an honest claim of right (in respect of the property the subject of the charge) if he honestly believes himself to be entitled to do what he is doing [in relation to that property].”

[28] I have made the parenthetical insertions in the dictum of Gibbs J in deference to the observations of Mansfield CJ in Olsen v Grain Sorghum Marketing Board; Ex parte Olsen that the statement of Gibbs J must be read as speaking of conduct in respect of the property the subject of the charge.
[29] … It was submitted on behalf of the respondent that only a claimant to a beneficial interest in property in that claimant may raise a defence under s 22(2) of the Criminal Code. But the language of s 22(2) does not suggest that the defence which it affords can or should be read down in this way; and to read the language of s 22(2) as if it were so confined would be inconsistent with the liberal construction of the provision supported by R v Jeffrey & Daley.”

It was concluded in this case, that there was evidence sufficient to raise the issue of a defence under s 22(2) of the Code. Mr Copley adds that the list of ways in which a person can ground a defence of honest claim of right under s 22(2) identified in [25] of the judgment are non-exhaustive examples.[80]

[80]T1-32 L8-15.

With reference to the statements made by Mr Preston to Constables Parker and McMeniman,[81] and their evidence he was holding signs depicting aborted babies, it was submitted this points to an honestly held belief on the part of Mr Preston that not only were abortions being performed, but illegal abortions were being performed at the clinic, (particularly when regard is had to his exhortation to police to “go in there and arrest them”); and as a result (and indeed whether he held a belief that the abortions were illegal or not) he held the belief he was entitled to occupy the steps to deter or prevent people accessing such abortion procedures.
[81]These statements are set out at [33] of the Outline of Argument on behalf of the appellant and are consistent with Constable Parker’s understanding as set out at [27] above that Mr Preston said he was there to protect the lives of unborn children inside the business.

Mr Copley submitted that, provided Mr Preston honestly (ie subjectively) held this belief, it is irrelevant whether this belief was objectively reasonable; and nor did it matter that he believed s 273 of the Code applied[82] because any such mistake as to law is also irrelevant.
[82]Mr Copley concedes at [38] of the Outline of Argument on behalf of the appellant that it probably did not because the application of force is not an element of the offence of trespass.

He submits a hearing of the tape is sufficient to establish Mr Preston’s belief was genuine, and therefore honestly held, and in these circumstances even if it was misguided, wrong headed, or it was based on a right the law does not recognise (eg occupying the stairs in order to defend all unborn children), s 22 would apply.

As he correctly observed there is no issue about any attempt to defraud.

He submits that trespass is an offence relating to property, and as the defence is available in respect of possessing, damaging or destroying property, it must also be available for offences such as this which relates to occupying property.

With reference to Walden v Hensler[83] he submits it is not necessary “that the claim be one to property in the object in question or that it be a claim peculiar to the defendant.”
[83](1987) 163 CLR 561 at 600.

It is further submitted the defence must be available where a defendant honestly believes himself entitled to do what he is doing “in respect of the property the subject of the charge” (in this case the steps) even in the absence of a beneficial interest or agency.[84]
[84]Reference is made to R v Pollard [1962] QWN 13.

In conclusion, it is submitted the prosecution could not (and made no attempt to) exclude the defence beyond a reasonable doubt, and accordingly, I should find the defence has not been excluded to this standard. Although Mr Copley candidly accepts he cannot point to an authority that goes as far to apply s 22(2) in circumstances such as exist in this case.

Section 31(1)(c) and (d) – Compulsion[85]

[85]Outline of argument on behalf of the appellant, [48]-[50], T1-34 L48 - T1-36 L10.

It is next submitted that if illegal abortions were to be performed at the clinic on the day in question, the prosecution failed to exclude defences raised under s 31(1)(c) and (d) of the Code, which provide:

“31 Justification and excuse – compulsion
(1) A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say –
…
(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to … another person in the person’s presence;
(d) when –
(i) the person does or omits to do the act in order to save … another person … from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and
(ii) the person doing the act or making the omission reasonably believes … the other person is unable otherwise to escape the carrying out of the threat; and
(iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.”

The submission is that the prosecution has not excluded the defence under s 31(1)(c) for the following reasons:

(a)     relevant mothers and/or foetuses were sufficiently proximate to           the Appellant to have been “in his presence”;
(b)    a pending illegal abortion is actual and unlawful violence        threatened to a relevant mother and/or foetus; and
(c)     the Appellant’s occupation of the steps was (at least) reasonably         necessary to resist that actual and unlawful violence.

In relation to para [112](a) it is argued that “threatened” could be used expansively, and that actual and unlawful violence was threatened to the persons coming into the facility at the time he was on the steps. Reference was made to the evidence that at least one woman walked past him on the steps.

When I put to Mr Copley that there is no evidence as to why people were entering the premises, so that this woman or any of the other women who entered the premises via the driveway may not have been attending for terminations as opposed to some other form of business, it was conceded this may be so.[86]

However, the alternative submission was advanced, that as there was evidence at least one abortion was to be performed that day, the violence threatened was sufficiently proximate to have been in his presence notwithstanding he was out on the steps.

[86]T1-35 L35-41.

In relation to para [112](c) it was argued his actions were clearly designed to prevent or deter the abortion which was to happen that day.

It is submitted that, similarly, s 31(1)(d) applies in the circumstances.

Section 24 – Mistake of fact [87]

[87]Outline of Argument on behalf of the appellant, [51]-[54], T1-36 L10, T1-38 L26.

However, Mr Copley accepts there is no evidence illegal abortions were to be performed that day.[88]
[88]T1-34 L44-47; T1-36 L1-4.

For this reason he submits in the alternative that even if the abortions to be performed that day were legal, a defence arises on the evidence as a result of a combination of ss 24 and 31 of the Code.

Section 24 of the Code relevantly provides:

“24 Mistake of fact
(1) A person who does … an act under an honest and reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
…”

It is submitted that the same evidence which is said to raise “a defence under s 22 also raised a defence under s 24”, the relevant mistake being a belief by Mr Preston that illegal abortions were to be carried out.

Ms Litchen conceded during oral argument that it was apparent he had an honest belief that terminations were being carried out on the premises. However, she argued it doesn’t follow this belief was reasonable.[89]
[89]T1-45 L33-48. Although she put this in terms of a concession that s 24 was raised by the evidence, in light of her submission on the issue of the reasonableness of that belief, this was really a concession as to the honesty of that belief.

As to the objective reasonableness of the belief, Mr Copley particularly relies on:

(a) Ms Guy’s evidence that abortions were planned on the day;

(b) there being no evidence those abortions were legal in accordance with Queensland law as expressed in R v Bayliss and Cullen;[90]

(c) on the basis of Jones v Dunkel[91] the inference should be drawn that nothing that Ms Guy (nor any other prosecution witness) could have said would have assisted the Crown in showing that the abortions which were scheduled for the day in question were lawful;

(d) if there was a mistaken belief that illegal abortions were to be performed, the simple means by which the prosecution could have been expected to exclude the reasonableness of it, as raised on the evidence, was to positively adduce evidence (eg from Ms Guy) that abortions that were to have been performed were lawful. Despite the obvious opportunity to lead such evidence from Ms Guy, the prosecution failed to do so.

[90](1986) 9 Qld Lawyer Reps 8.

[91](1959) 101 CLR 298.

Therefore it is submitted, even if abortions to be performed that day were legal, mistake of fact was not excluded and Mr Preston was entitled to rely on s 31, as though “the real state of things had been such as (he) believed to exist” – namely that illegal abortions were to be carried out.

Submissions for the respondent

Whether elements of charge were proved [92]

[92]Amended Outline of Submissions on behalf of the Respondent, [5.1]-[5.3].

Although Mr Copley did not specifically address Ground 1 of Appeal in his written or oral submissions, except to the extent of seeking orders that Mr Preston’s conviction be set aside and a verdict of not guilty ordered,[93] the thrust of his argument was that I would find the magistrate erred in finding on the evidence before her that Mr Preston unlawfully remained in a place at 687 Logan Road, Greenslopes on 4 March 2008 in accordance with this ground.
[93]Outline of Argument on behalf of the appellant, [55].

It is submitted on behalf of Constable Parker that it was open to the magistrate to make this finding, as the elements of the charge were proven on the evidence, and s 273 of the Code had been negatived. It is said that the charge of trespass arose when the appellant remained at a place belonging to the owner of the business, on the steps forming the entrance to the premises.

Compliance with s 634 of the PPRA

It is submitted Constable Parker gave Mr Preston an opportunity to explain his presence, although he was not contemplating the charge of trespass at the time; he informed Mr Preston his presence was not welcomed there by the owner;[94] listened to his reasons for being there; and gave him a number of opportunities to move on.
[94]T1-41 L42-43.

Ms Litchen argued there was a reasonable inference Constable Parker did not consider this explanation reasonable because he charged Mr Preston with contravening a direction rather than finding another solution; and that Constable Parker considered this explanation, which he must have thought would be no different, when deciding to charge him with trespass.[95]
[95]Ibid L25-32; Section 791(2) of the PPRA states, “A person must not contravene a … direction by a police officer … under this Act, unless the person has a reasonable excuse”. (My emphasis).

In proceeding to decide the case for myself on the evidence admitted at first instance in accordance with the principle set out in para [9] of this judgment, I apply the well established principle that the prosecution must negative any defence raised on the evidence beyond reasonable doubt.

Because Mr Preston conceded during his submissions to the magistrate that he did enter the place and remain there, the real issue is whether the prosecution has proved beyond reasonable doubt that in remaining there he did so “unlawfully.” Schedule 2 of the SOA defines “unlawfully” to mean “without authorisation, justification or excuse by law”. Therefore the onus lies on the prosecution to exclude beyond reasonable doubt any such excuse raised by the evidence.

The excuse provided by s 22(2) applies by virtue of s 36 of the Code to “all persons charged with any offence against the Statute Law of Queensland”. Therefore where a person is charged with an offence under a statute, such as s 11(2) of the SOA, the person is entitled to rely on s 22(2) if, in the particular circumstances, the person can bring himself or herself within the language of the section.[137]
[137]Walden v Hensler (1987) 163 CLR 561 at 598 per Toohey J.

Section 22(2) as set out at para [98] of this judgment, only applies to “an offence relating to property”. It is “not limited … to offences by which the offender obtains possession of property. The defence is available when the offence relates to the damaging or destroying of property …”.[138] I agree with Mr Copley that trespass is an offence relating to property, and therefore s 22(2) must also be available for such an offence against s 11(2) of the SOA which relates to a person remaining in a place, or as Mr Copley puts it, occupying property. This is confirmed by the Full Court of Western Australia, which in Molina v Zaknich[139] held that the equivalent provision of the Criminal Code (WA) was applicable to an offence of remaining on premises without lawful authority contrary to s 82B(1) of the Police Act 1892 (WA).
[138]Ibid at 571 per Brennan J, applied to in R v Waine [2006] 1 Qd R 458, [24] at 462.
[139](2001) 125 A Crim R 401; [2001] WASCA 337. The equivalent provision is also s 22. I note that in that case McKechnie J (with whom Malcolm CJ and Templeman J agreed) said s 82B was not concerned with trespass. He said at 414, [78]:
“An offence of trespassing on enclosed land is created by the Police Act s 82A. Section 82B presupposes that a person may enter land lawfully. An offence is only committed if a person remains on premises without lawful authority after being warned to leave. The words “lawful authority” are not to be equated with “honest claim of right”. They involve different concepts. A person may not have lawful authority to remain, but nevertheless honestly claim to have a right to remain.”

I am also satisfied that Mr Preston’s act of remaining on the steps at 687 Logan Road, Greenslopes by continuing to occupy them for 32 minutes from Constable Parker’s arrival there until the time, of his arrest, including 24 minutes from the first move on direction, was an “act done by … [him] with respect to … property” for the purpose of s 22(2).

Accepting, as I do that Mr Preston had no intention to defraud, the issue for determination becomes whether there is evidence raising for consideration that he remained on the steps in the exercise of an honest claim of right, and if there is, whether the prosecution has negatived this beyond reasonable doubt.

What is required to raise the possibility of a defence under s 22(2) of the Code is an honest claim by Mr Preston “to an entitlement, in, or with respect to property”.[140] Mr Preston was not claiming a proprietary or possessory right in property, but to be entitled to act in respect of property.[141] This is a reference to the property the subject of the charge.[142] To adopt the language of Gibbs J in R v Pollard[143] with the parenthetical insertions made in R v Waine: [144]

“An accused person acts in the exercise of an honest claim of right (in respect of the property the subject of the charge) if he honestly believed himself to be entitled to do what he is doing [in relation to that property].”

[140]R v Waine[2006] 1 Qd R 458, [23] at 462.

[141]Ibid, [25] at 462. I agree with Mr Copley’s submission that it is not necessary that the claim be one to the property in the object in questions or that it be a claim peculiar to the defendant. As stated in R v Waine, [29] at 463, the defence is not read down to limit it to only a claimant to a beneficial interest in property. Therefore, I accept his submission that it is available in the absence of a beneficial interest or agency.

[142]Ibid, [28] at 462.

[143](1962) QWN 13.

[144][2006] 1 Qd R 458, [27] at 462.

In the present case, Mr Preston could raise the defence under s 22(2) of the Code in respect of the steps at 687 Logan Road, Greenslopes if there is evidence that he honestly believed himself to be entitled to remain in occupation of those steps.

I agree with Mr Copley that this belief as to an entitlement is not limited to the examples identified in [25] of R v Waine[145] where reference is made to the belief coming from the consent of the owner, or from a person believed to be the owner, as well as a mistaken belief as to one’s own title. However, as emphasised in that case:[146]

“What is important is the honest belief that one is legally entitled to do to the property that which one is doing.”

[145] Ibid, [25] at 462.

[146] Ibid.

What is relied on by Mr Preston is a belief he was entitled to occupy the steps to deter or prevent people accessing abortion procedures. However, even if he honestly believed that he was achieving this by remaining in occupation of the steps, the evidence contradicts that he had an honest belief that he was legally entitled to do so, at least from the time he was given the first move on direction. From this point of time he knew he had no permission to occupy the premises. As the magistrate said, “Mr Preston knew that his presence was unwelcome.” I agree with this assessment on the basis of the facts established by the evidence.

This first move on direction was given in circumstances that Constable Parker told Mr Preston:

“We have had an official complaint by the business.”

At this time Mr Preston knew, Constables Parker and McMeniman had talked to the person in authority at the premises immediately before this conversation. He accepted in cross-examination that he did not have any permission from the owner or occupier to be on the steps. It was not necessary for the owner or occupier to convey this to him personally. Section 792 of the PPRA provides that a police officer performing a function of the police service is performing a duty of a police officer even if the function could be performed by someone other than a police officer. The example given is that “An occupier of a place who may remove a trespasser from the place asks a police officer to remove the trespasser. The police officer when removing the trespasser is performing a function of the police service.” It follows that a police officer is performing a function of the police service in telling a person to move from a place on behalf of the owner or occupier, who has to the knowledge of the police officer not given the person permission to be there and has made an official complaint to the police officer about the person’s presence.

Mr Preston was in a different position to R v Pollard where the claim was that although he had not asked the owner for his consent, he did not think the owner would have any objections to his taking the vehicle and he took it because he believed that if he had asked, the owner would have consented. In that case Gibbs J said:[147]

“If he honestly believed that he was entitled to take the vehicle without obtaining the owner’s consent, either because he thought that the owner would not object, or because he thought the owner would have given his consent if he had been asked for it, or for any other reason, the taking would have been in the exercise of an honest claim of right.”

Mr Preston could not have any such belief in relation to his entitlement to remain in occupation of the steps, including for any other reason, because he not only did not have any permission from the owner to do so, but also because he knew that an official complaint had been made by the business about his doing so, and therefore that his presence was unwelcome.

[147]Ibid at 29.

In Walden v Hensler[148] which involved a charge of keeping protected fauna, the appellant’s claim was based on his belief in his entitlement to do so according to Aboriginal law and tradition, Gaudron J said:[149]

“… he sought and obtained permission to hunt from the manager of Carlton Hill station, within the boundaries of which was situated the land where the birds were taken. It may be that Mr. Walden thought that his claim derived immediately from the permission granted; alternatively, he may have thought that such permission was a condition precedent to the exercise of a right recognized by law. On either view, the right he claimed was claimed by virtue of the supposed operation of law, and not merely by virtue of the custom of his community.”

The fact this was a dissenting judgment does not affect the proposition that unlike those circumstances in which her Honour found the claim of right fell within s 22 of the Code, Mr Preston had not sought permission and also knew that his presence on the steps was unwelcome.

[148](1987) 163 CLR 561.

[149]Ibid at 609.

As I have observed in Molina v Zaknich[150] the Full Court of Western Australia held that s 22 of the Criminal Code (WA) was applicable to an offence of remaining on premises without lawful authority contrary to s 82B(1) of the Police Act 1892 (WA). In that case the applicant was a duly accredited union official who entered a construction site. He remained on the premises, after being warned to leave by the person in charge. It was an element of the offence that he remained on the premises after receiving such a warning. His claim was that under an industrial award, made pursuant to the Industrial Relations legislation, he had a right to enter and to remain on the property notwithstanding the warning. The existence of this award which the court held was applicable to premises of the nature on which the applicant remained, distinguishes that case from the present, where there was nothing of a similar nature to expressly override the clear statement by Constable Parker to Mr Preston that he was not to remain on the premises following an official complaint by the business, in circumstances where he had no permission from the owner or occupier to be on the steps. Further, a warning to leave the premises is not an element of the offence against s 11(2) of the SOA.
[150](2001) 125 A Crim R 401; [2001] WASCA 337.

As I have noted Mr Copley concedes that he cannot point to an authority which goes so far as to apply s 22(2) in circumstances such as exist in this case.

In circumstances in which I find that Mr Preston did not have an honest belief that he was legally entitled to remain in occupation of the steps, at least from the time of the first move on direction when he knew he had no permission to occupy the premises, the second limb of s 22(2) is inapplicable. There is no evidence raising it for consideration. Even if there is such evidence, I would be satisfied for the same reasons that the prosecution has negatived this beyond reasonable doubt.

In reality Mr Preston’s occupation of the steps was not pursuant to any such belief, but a belief that illegal abortions were to be carried out at the premises, and that he could deter or prevent these by his presence. Therefore the unlawfulness of his conduct is to be judged with reference to s 31, either alone or in conjunction with s 24 of the Code, and not s 22(2).

I therefore reject Ground 2C of Appeal.

In coming to this conclusion I have decided the case for myself based on the facts established by the evidence before the magistrate. I have disregarded any facts established by the evidence in the earlier trial involving Mr Preston over which I presided[151] or in the previous appeal heard by Shanahan DCJ.[152]
[151]Police v Preston, unreported, Irwin CM, Bris Mag 00028810; Mag 00174208/03(4), 3 March 2004.
[152]Preston v Liussi, unreported, Shanahan DCJ, Appeal No D4101 of 2005, 19 June 2006.

Section 31(1)(c) and (d) – Compulsion

Ground 2E of Appeal is that the magistrate erred by failing to find the prosecution had not excluded s 31 of the Code.

As with s 22(2), the issue of whether Mr Preston was protected by s 31 was not expressly raised by him or the prosecutor before the magistrate. Consequently there are again no direct findings of fact relevant to this issue.

As with s 22(2), by application of s 36 of the Code when a person is charged with an offence against s 11(2) of the SOA the person is entitled to rely on s 31 if, in the particular circumstances, the person can bring himself or herself within the words of the section.

The applicability of s 31 is also relevant to the issue of whether the prosecution has proved beyond reasonable doubt that in remaining in occupation of the steps, he did so “unlawfully.” Therefore, the onus lies on the prosecution to exclude beyond reasonable doubt any excuse under s 31 that is raised by the evidence.

In this case Mr Copley specifically relies on the defences raised under s 31(1)(c) and (d) which are set out in para [111] of this judgment.

s 31(1)(c)

By virtue of s 31(1)(c) a person is not criminally responsible for an act if the person does the act when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s presence.

Therefore in order to raise s 31(1)(c) for consideration, there must be some evidence that:

(a) violence was threatened to Mr Preston (or another person in his presence);

(b) the violence threatened was unlawful; and

(c) Mr Preston did an act which was reasonably necessary in order to resist the threatened violence.

If the defence under s 31(1)(c) is thereby raised, in order to exclude it, the prosecution bears the onus of satisfying the court beyond reasonable doubt of any one of the following things:
(a)that violence was not threatened to Mr Preston (or another person in his presence);

(b)that the violence threatened was not unlawful; or

(c)that the act done by Mr Preston was not reasonably

necessary in order to resist the threatened violence.

In the present case “the act done” by Mr Preston was remaining in occupation of the stairs at 687 Logan Road, Greenslopes.

Mr Copley submits that the “unlawful” violence threatened was a pending illegal abortion, and this violence was threatened to a relevant mother and/or foetus. He submits that relevant mothers and/or foetus were sufficiently proximate

to Mr Preston to have been “in his presence” because it was threatened at the time he was on the steps. He also submits that Mr Preston’s occupation of the steps was (at least) reasonably necessary to resist that actual and unlawful violence. He relies on Mr Guy’s evidence that abortions were scheduled to be done that day. Therefore he submits that at least one abortion was to be performed that day and the violence threatened was sufficiently proximate to have been in his presence notwithstanding he was out sitting on the steps.

However, the threshold question is whether there is some evidence that there was a pending illegal abortion threatened to a relevant mother and/or foetus, so as to constitute actual and unlawful violence.

I proceed to consider this issue on the basis that the business owned by Ms Guy and operated since 1999 at the premises at 687 Logan Road, Greenslopes where Mr Preston remained in occupation of the steps at the relevant time, undertakes termination of pregnancies. I also proceed on the basis of her evidence that abortions were scheduled to be done that day.

As I stated at para [176] of this judgment it can be readily accepted that abortion on demand is illegal in Queensland. However, it does not follow from the fact the business operated at 687 Logan Road, Greenslopes undertakes the termination of pregnancies, that the abortions to be undertaken on the day Mr Preston was occupying the steps were abortions on demand or were otherwise illegal.

According to Ms Guy’s evidence, in addition to the operating doctor and the anaesthetist, the patients who pay for the services see a counsellor. It can be expected that the medical practitioner, who on that date was responsible for the welfare of those pregnant women, would know, consider and comply with the law in determining whether to perform an abortion on them, and as such would not conduct such a procedure unless honestly believing on reasonable grounds that each of the criteria identified in para [176] of this judgment, on the basis of the established law in Queensland, were satisfied. It is to be expected the counsellor would play a role in ensuring this is the case.

Mr Copley accepts there is no evidence illegal abortions were to be performed on that day, but submits there is no evidence that any abortions were legal in accordance with the law of Queensland as expressed in that decision. He also argues that on the basis of Jones v Dunkel[153] the inference should be drawn that nothing Ms Guy (nor any other prosecution witness) could have said would have assisted the Crown in showing that the abortions which were scheduled for that day were lawful. He contends the prosecution could simply have adduced evidence (eg from Ms Guy) that abortions that were to have been performed were lawful.
[153](1959) 101 CLR 298.

However, to establish that a medical practitioner has unlawfully procured a miscarriage in breach of s 224, the prosecution must negative the provisions of s 282. This requires they prove beyond reasonable doubt that the practitioner did not honestly believe each of the criteria identified in para [176] were satisfied. It should not be assumed that medical practitioners who perform abortions do so in contravention of the law, in the absence of evidence to the contrary. This is emphasised in the statement by GN Williams J in K v T that a doctor performing a surgical operation on a woman who is with child is not criminally responsible for the death of that embryo child pursuant to s 224 if the operation is within the purview of s 282 of the Code; and it is only if there is an apparent want of good faith on the part of the practitioner concerned in deciding upon an operation of this type that a prosecution should follow.[154]
[154][1983] 1 Qd R 396 at 398.

In the present case Mr Preston was required to point to some evidence which raised s 31(1)(c) for consideration. Unless he did so there was no onus on the prosecution to exclude this defence beyond reasonable doubt. Therefore it was necessary for Mr Preston to be able to point to some evidence that illegal abortions were scheduled on the day he remained in occupation of the steps at 687 Logan Road, Greenslopes; or as Mr Copley put it, there were to be “pending illegal abortions.” Only by doing so could he raise evidence that actual and unlawful violence was threatened to a mother and/or a foetus at those premises on that date. If he did not do so, the prosecution was not required to prove beyond reasonable doubt that any abortions scheduled for that date were not unlawful. Accordingly the rule in Jones v Dunkel[155] had no application.
[155](1959) 101 CLR 298.

I conclude that s 31(1)(c) of the Code is inapplicable because there is no evidence illegal abortions were scheduled at 687 Logan Road, Greenslopes on the date Mr Preston remained in occupation of the steps, such as to amount to actual and unlawful violence threatened to him or any other person in his presence, so as to raise it for consideration. There is no evidence that any abortion to be conducted at the premises on that date would not have been lawful on therapeutic grounds in terms of the decisions representing Queensland law; and there was no evidence of apparent want of good faith on the part of the medical practitioner concerned in deciding upon such an operation at that time and place. As I have noted, Mr Copley accepts there is no evidence that illegal abortions were performed on that day.

This conclusion is not affected by s 313(2) which was not relied on by Mr Copley, but was the subject of Mr Preston’s submissions to the magistrate. Section 313(2) provides:

“Killing unborn child
…
(2)Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to …, the child before its birth commits a crime.

Maximum penalty – imprisonment for life.”

Mr Preston submitted this provision effectively endorses the proposition that anyone should be able to be charged with homicide of an unborn child and also that life begins before birth.

Although it is a constituent part of an assault for the purpose of the criminal law that it be without the other person’s consent,[156] and the women who attended the premises for the purpose of a termination of pregnancy on the relevant date were consenting to the procedure, he submitted the essential element of the offence created by s 313(2) is the killing of an unborn child, and not the assault against the mother. He contended that because one person cannot give consent to a criminal act against a second person, the section has the effect that a woman cannot give lawful consent to an abortionist to kill her baby.
[156]See s 245 of the Code.

However the offence created by s 313(2) has as an essential element the unlawful assault of a pregnant female. As such, lack of consent of the female is an element of this offence.

In any event, whether or not this offence can be committed when a female consents to an assault which has this consequence, Mr Preston’s argument ignores the fact that, where as in this case, the alleged unlawful assault is an abortion, it must be considered in the context of s 282 of the Code which provides the circumstances in which a surgical operation may be lawfully performed on an unborn child for the benefit of its mother’s life. In accordance with what I have previously said, the assault involved in the abortion will not be unlawful if the medical practitioner has an honest belief on reasonable grounds that each of the criteria identified in para [176] of this judgment are satisfied.

Therefore, even having regard to s 313(2) the application of s 31(1)(c) falls to be determined with reference to the same issues which I have already addressed, and therefore does not affect my conclusion.

I reject Mr Preston’s argument that s 313(2) supports the proposition that life begins before birth, because the provision is not concerned with this issue but is limited to creating an offence in circumstances where there is an unlawful assault on a pregnant female with the consequence of destroying the life of, or doing grievous bodily harm to, an unborn child.

If, as Mr Preston submitted to the magistrate, s 292 of the Code does not define when an unborn child becomes a person, neither does s 313(2).

Section 292 provides:

“A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother …”

Mr Copley’s argument is that for the purpose of s 31(1)(c) the pending illegal abortion is actual and unlawful violence threatened to a relevant mother and/or foetus. As a matter of commonsense, and in the context of Mr Preston’s statements to Constable Parker that “10 to 15 children are likely to be killed here today” the violence threatened to a relevant foetus involves the killing of the foetus, so far as Mr Preston is concerned. Because the surgical operation which would have this result can be expected to be done with the relevant mother’s consent, s 313(2) would not apply. On this basis s 292 is the relevant provision, and the foetus does not become a person capable of being killed until it has completely proceeded in a living state from the body of its mother. Therefore in the context of this case a foetus is not a person for the purpose of s 31(1)(c) .

I do not consider that Bowditch v McEwen & Ors[157] requires any different conclusion. This is not a decision in the context of the criminal law, but is a decision about the extent of the duty of care owed by the driver to others in a vehicle, including any foetus within a passenger and extending to where the foetus is within the driver.
[157][2002] QCA 172 especially [12].

Even if I am wrong about the proposition that a foetus is not a person for the purpose of s 31(1)(c) in this case, for the reasons I have previously given this section is inapplicable because there is no evidence that actual and unlawful violence was threatened to a foetus, a mother, Mr Preston, or for that matter, to any other person. As such there is no evidence raising s 31(1)(c) for consideration.

s 31(1)(d)

It was submitted that similarly, s 31(1)(d) applies in the circumstances.

By virtue of s 31(1)(d) a person is not criminally responsible for an act if the person does the act in order to save another person from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat and reasonably believes the other person is unable to otherwise escape the carrying out of the threat, provided the act is reasonably proportionate to the harm or detriment threatened.

Therefore, in order to raise s 31(1)(d) for consideration, there must be some evidence of these elements, including that Mr Preston remained in occupation of the steps in order to save another person from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat.

On the basis of Mr Copley’s submissions supporting the application of s 31(1)(c), the “serious harm or detriment” threatened must be a pending illegal abortion threatened to a relevant mother and/or foetus. A legal abortion cannot be “serious harm or detriment” entitling a person to do an act in order to resist it, and therefore provide a justification or excuse so as to render the person not criminally responsible for that act.

For the same reasons as I have concluded in relation to s 31(1)(c), that there is no evidence illegal abortions were scheduled at 687 Logan Road, Greenslopes on the date Mr Preston remained in occupation of the steps there, I come to the same conclusion in relation to s 31(1)(d). Consequently s 31(1)(d) is also inapplicable because there is no evidence a person other than Mr Preston was threatened with serious harm or detriment, by another person in a position to carry out the threat, and which therefore required him to remain there in order to save that person. As such there is also no evidence raising s 31(1)(d) for consideration.

Conclusion – s 31(1(c) and (d)

I therefore reject Ground 2E of Appeal

Section 24 – Mistake of fact

However because Mr Copley accepts there is no evidence illegal abortions were to be performed that day, he submits in the alternative that even if the abortions to be performed that day were legal, a defence arises on the evidence as a result of a combination of ss 24 and 31 of the Code.

Section 24 of the Code is set out in para [118] of this judgment. It was submitted, even if abortions to be performed that day were legal, mistake of fact was not excluded and Mr Preston was entitled to rely on s 31 as though “the real state of things had been such as (he) believed to exist” – namely that illegal abortions were to be carried out. Therefore Ground 2D is that the magistrate erred by failing to find that the prosecution had not excluded the operation of s 24 of the Code.

As with the other defences relied on, s 24 was not expressly raised by Mr Preston or the prosecutor before the magistrate. Again by virtue of s 36 of the Code Mr Preston is entitled to rely on s 24 in combination with s 31 if, in the particular circumstances of this case, he can bring himself within the words of the section.

Although like Ms Litchen I accept that Mr Preston honestly believed that illegal abortions were being carried out at the premises, I am not satisfied there is any evidence the belief was reasonable as required by s 24.

As I have stated in the discussion of the application of s 31(1)(c), it can be expected the medical practitioner who on 4 March 2008 was responsible for the welfare of the pregnant women who attended at 687 Logan Road, Greenslopes, would know, consider, and comply with the law in determining whether to perform an abortion on them, and as such would not conduct the procedure unless honestly believing on reasonable grounds that each of the criteria identified in para [176] of this judgment on the basis of the established Queensland law, were satisfied. As I also stated it is to be expected the counsellor would play a role in ensuring this is the case.

Despite Mr Copley’s submissions set out at para [225], to the effect that the prosecution have adduced no evidence abortions that were to be performed were lawful, as stated in para [226] it should not be assumed that medical practitioners who perform abortions do so in contravention of the law in the absence of evidence to the contrary.

In these circumstances despite the honesty of Mr Preston’s belief that illegal abortions were being carried out at the premises, that belief was purely speculative. There was no objective basis for him to have a reasonable belief abortions were being carried out at the premises by medical practitioners in contravention of Queensland law. In particular there was no such basis for him to believe there was any want of good faith on the part of the practitioner concerned in deciding upon such an operation at that place and time.

The absence of any evidence that Mr Preston had actual knowledge of the activities inside the premises on that date in relation to the individual terminations of pregnancy emphasises that his belief was speculative and not reasonable.

For these reasons there is no evidence raising s 24 for consideration in conjunction with s 31 of the Code. Even if there is such evidence, I would be satisfied for the same reasons already expressed that the prosecution has negatived its operation beyond reasonable doubt.

I therefore reject Ground 2D of Appeal.

Whether elements were proved

Ground 1 of Appeal is that the magistrate erred in finding on the evidence before her that the defendant unlawfully remained in a place at 687 Logan Road, Greenslopes on 4 March 2008.

As I have observed Mr Copley did not specifically address this ground in his written or oral submissions except to the extent of seeking orders that Mr Preston’s conviction be set aside and a verdict of not guilty ordered. However the thrust of his argument was that the magistrate erred in finding on the evidence that Mr Preston unlawfully remained at that place as charged.

In deciding the case for myself based on the facts established by the evidence, consistently with my finding at para [170], I am satisfied beyond reasonable doubt that on 4 March 2008 Mr Preston remained in a place used for business at 687 Logan Road, Greenslopes.[158]
[158]In addition Mr Preston conceded in his submissions to the magistrate that he did enter and remain on the premises.

As stated in para [188] I am also satisfied beyond reasonable doubt that the s 634(3)(b) requirement was observed by Constable Parker, and as such the prerequisite to the commission of an offence against s 11(2) of the SOA has been established.

Therefore as identified at para [194] the real issue is whether the prosecution has proved beyond reasonable doubt that in remaining there, Mr Preston did so “unlawfully” in the sense that he was there “without authorisation, justification or excuse by law”. The onus lies on the prosecution to exclude beyond reasonable doubt any such excuse raised by the evidence.

For the reasons I have given, with reference to the excuses advanced by Mr Copley, these either have not been raised for consideration on the evidence or, if raised, I would be satisfied that the prosecution has excluded their operation beyond reasonable doubt.

In addition I have concluded that arguments raised before the magistrate on the basis of ss 273 and 313(2) are without foundation.

I am satisfied beyond reasonable doubt that the element of unlawfulness has been established.

Therefore I am satisfied beyond reasonable doubt that on 4 March 2008 Mr Preston unlawfully remained in a place used for a business purpose at 687 Logan Road, Greenslopes.

Accordingly, I reject Ground 1 of Appeal.

Conclusion

Accordingly, the appeal against conviction is dismissed. The order of the magistrate is confirmed under s 225(1) of the JA.

Order

The order of the court is that the appeal against conviction is dismissed and the order of the magistrate is confirmed.

I will hear the parties in respect of the costs of the appeal.

CITATION:	Preston v Parker [2010] QDC 264
PARTIES:	JOHN GRAEME PRESTON (appellant) v NATHAN JAMES PARKER (respondent)
FILE NO/S:	BD 1855/08
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane Magistrates Court
DELIVERED ON:	24 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2009
JUDGE:	Irwin DCJ
ORDER:	Appeal against conviction is dismissed and the order of the magistrate is confirmed
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – TRESPASS – PREREQUISITE TO THE COMMISSION OF THE OFFENCE – where the appellant was convicted of one count of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) – where it was alleged that he had remained in a place used for a business purpose – where it was alleged that after being given two move on directions by a police officer he remained occupying the steps at that place – where he was arrested for contravening a direction by a police officer contrary to s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld) because of his failure to move on – where no evidence was offered on this charge and he was charged with trespass – where under s 634(3)(b) of the Police Powers and Responsibilities Act before a police officer is entitled to charge a person with trespass the officer must consider the explanation given by the person for being present at the place is not reasonable – whether the observance of the s 634(3)(b) requirement is an element of the offence – whether the observance of the s 634(3)(d) requirement is a prerequisite to the commission of the offence – whether prosecution had to prove beyond reasonable doubt that the police officer formed the view required by s 634(3)(b) – whether the arresting officer considered the explanation given and whether he considered it not to be reasonable CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – CLAIM OF RIGHT – DEFENCE OF HONEST CLAIM OF RIGHT – AVAILABILITY OF DEFENCE – where the appellant was convicted of one count of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) – where it was alleged that he remained in a place used for a business purpose – where it was alleged that he remained occupying the steps at that place – where the business at the place undertook the termination of pregnancies – where there was evidence that termination of pregnancies were scheduled to be done that day – where the appellant conceded that he entered the place and remained there – where it was submitted there was evidence of an honest belief by the appellant that he was entitled to occupy the steps to deter or prevent people from accessing termination procedures at the place – where there was evidence that he was aware he was not given any permission to occupy the steps from the time the police told him about having an official complaint from the business and he was given a move on direction – where the appellant remained in occupation of the steps after he was given two move on directions – whether the defence of honest claim of right under s 22(2) of the Criminal Code 1899 (Qld) was available CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DURESS – where the appellant was convicted of one count of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) – where it was alleged that he remained in a place used for a business purpose – where it was alleged that he remained occupying the steps at that place – where the business at the place undertook the termination of pregnancies – where there was evidence that termination of pregnancies were scheduled to be done that day – where the appellant conceded that he entered the place and remained there – where the appellant said he was occupying the steps to deter or prevent people from accessing illegal termination procedures at the place – whether there was evidence that actual and unlawful violence was threatened to any person for the purpose of the availability of a defence of compulsion or duress under s 31(1)(c) of the Criminal Code 1899 (Qld) – whether there was evidence that serious harm or detriment was threatened by another person in a position to carry out the threat for the purpose of the availability of a defence of compulsion or duress under s 31(1)(d) of the Code CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – where the appellant was convicted of one count of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld) – where it was alleged that he remained in a place used for a business purpose – where it was alleged that he remained occupying the steps at that place – where the business at the place undertook the termination of pregnancies – where there was evidence that termination of pregnancies were scheduled to be done that day – where the appellant conceded that he entered the place and remained there – where the appellant said he was occupying the steps to deter or prevent people from accessing illegal termination procedures at the place – where the appellant honestly believed that illegal termination procedures were carried out at the place – where there was no evidence that any termination procedure to be carried out at the place on that day would not have been lawful on therapeutic grounds in accordance with Queensland law – where there was no evidence of apparent want of good faith on the part of any medical practitioner concerned in such a procedure – whether in the circumstances there was evidence of any objective basis for the appellant to have a reasonable belief that any termination procedure being carried out at the place on that date would be in contravention of Queensland law – whether the defence of mistake of fact under s 24 of the Criminal Code 1899 (Qld) was available in conjunction with s 31(1)(c) and/or s 31(1)(d) of the Code Acts Interpretation Act 1954 (Qld), s 14B(1(c), s 14 (4) Criminal Code 1899 (Qld), s 22, s 23, s 24, s 31(1)(c), s 31(1)(d), s 36, s 224, s 271, s 273, s 282, s 290, s 292, s 313(2), s 408A Criminal Code (WA), s 22 Justices Act 1886 (Qld), s 222, s 223(1), s 225(1) Police Act 1892 (WA), s 82B(1) Police Powers and Responsibilities Act, 2000 (Qld), s 44, s 46, s 48, s 365(1), s 633, s 634, s 791(2), s 792 Summary Offences Act 2005 (Qld), s 11(2), s 12 Attorney-General (Ex rel Kerr) v T [1983] 1 Qd R 404, cited Bowditch v McEwan and Ors [2002] QCA 172, cited Butera v DPP (Vic) (1987) 164 CLR 180, cited Coleman v Greenland, Donaldson, Powers etc & The State of Queensland [2004] QSC 037, cited Cox v Robinson [2001] 2 Qd R 261, cited Dobbs v Ward [2003] 1 Qd R 158, applied Ebner v Official Trustee (2000) 205 CLR 337, applied Fox v Percy (2003) 214 CLR 118, cited George v Rockett (1990) 170 CLR 104, cited Graham v Queensland Nursing Council [2009] QCA 280, applied Jones v Dunkel (1959) 101 CLR 298, cited K v T [1983] 1 Qd R 396 at 398, applied Keating v Morris [2005] QSC 243, cited Mbuzi v Torcetti [2008] QCA 231, cited Molina v Zaknich [2001] WASCA 337; (2001) 125 A Crim R 401, distinguished Police v Preston, Unreported, IrwinCM, Bris-Mag 00028810/03; Mag 00174208/03(4), 3 March 2004, cited Preston v Liussi, Unreported, Shanahan DCJ, Appeal No BD4101 of 2005, 19 June 2006, cited R v Bayliss and Cullen (1986) 9 Qld Lawyer Reps 8, applied R v Bourne [1939] 1 KB 687, cited R v Davidson [1969] VR 607, cited R v Jeffrey and Daley (2002) 136 A Crim R 7, cited R v Pollard (1962) QWN 13, cited R v Taiters, exparte Attorney-General [1997] 1 Qd R 333, cited R v Waine [2006] 1 Qd R 458, cited R v Williams [1988] 1 Qd R 289, cited Re Bayliss, Unreported, Supreme Court of Queensland, McPherson J, OS No. 376 of 1985, 24 May 1985, applied Rowe v Kemper [2008] QCA 175, applied Stevenson v Yasso [2006] 2 Qd R 150, cited Vievers v Roberts; exparte Vievers [1980] Qd R 226, applied Warden v Hensler (1987) 163 CLR 561, cited Webb v The Queen (1994) 181 CLR 41, cited
COUNSEL:	C K Copley for the appellant M J Litchen for the respondent
SOLICITORS:	Conroy & Associates for the Appellant Director of Public Prosecutions (Qld) for the Respondent