Preston v Parker

The appellant was convicted of one count of trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld). He appealed against the conviction, arguing that the police officer failed to consider the reasonableness of his explanation for being present at the place and that the court should have considered the availability of the defence of honest claim of right. The appeal was heard in the Queensland Court of Appeal.

The legal issues that the court had to decide included whether the requirement under s 634(3)(b) of the Police Powers and Responsibilities Act 2000 (Qld) was an element of the offence of trespass, whether the requirement under s 634(3)(d) was a prerequisite to the commission of the offence, whether the prosecution had to prove beyond reasonable doubt that the police officer formed the view required by s 634(3)(b), and whether the arresting officer considered the explanation given by the appellant and whether he considered it not to be reasonable. The court also had to consider the availability of the defence of honest claim of right under s 22(2) of the Criminal Code 1899 (Qld) and the defence of compulsion or duress under s 31(1)(c) and/or s 31(1)(d) of the Code.

The court held that the requirement under s 634(3)(b) was not an element of the offence of trespass, and that the requirement under s 634(3)(d) was a prerequisite to the commission of the offence. The court held that the prosecution had to prove beyond reasonable doubt that the police officer formed the view required by s 634(3)(b), but that there was no evidence that the arresting officer considered the explanation given by the appellant or whether he considered it not to be reasonable. The court held that the defence of honest claim of right was not available because the appellant did not have a reasonable belief that he was entitled to occupy the steps to deter or prevent people from accessing termination procedures at the place. The court held that the defence of compulsion or duress was not available because there was no evidence of actual and unlawful violence or serious harm or detriment threatened by another person in a position to carry out the threat.

The appeal against conviction was dismissed, and the order of the magistrate was confirmed.