QFM v The Commissioner of Police

[2015] QDC 320

DISTRICT COURT OF QUEENSLAND

CITATION:

QFM v The Commissioner of Police [2015] QDC 320

PARTIES:

QFM

(Appellant)

and

THE COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

4693/14

DIVISION:

Appellate

PROCEEDING:

Appeal under s222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2015

DELIVERED AT:

District Court at Brisbane 

HEARING DATE:

26 June 2015

JUDGE:

Devereaux SC DCJ

ORDER:

Set aside the learned magistrate’s order convicting the appellant of the charge of creating a disturbance on a railway without reasonable excuse;1.       

Confirm the order convicting the appellant of the charge of obstructing police;2.       

Vary the sentence order by reducing the period of the good behaviour order from 9 to 3 months.3.       

CATCHWORDS:

APPEAL: Where the appellant was tried and convicted of one count of creating a nuisance while on a railway station and one count of obstructing police in performance of duties – where police officers purported to seize tobacco from a child – whether on the facts the child was guilty of creating a disturbance on railway without reasonable excuse – whether arrest was lawful

Legislation:
Criminal Code 1899 s. 11

Justices Act 1886 (Qld) s. 222

Police Powers and Responsibilities Act 2000 (Qld) ss. 43, 365(3), 790(1)
Tobacco and Other Smoking Products Act 1998 (Qld) ss. 39, 40
Transport and Other Legislation Amendment Act 2014 (Qld) s. 68
Transport Operations (Passenger Transport) Act 1994 (Qld) (repealed) s. 143AF
Youth Justice Act 1992 (Qld) s. 13

COUNSEL:

JA Fraser for the appellant

CB Farnsworth for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the appellant
ODPP on behalf of the Commissioner of Police for the respondent

1. On 14 November 2014 the appellant was tried and convicted in the Childrens Court at Brisbane of one count of creating a nuisance while on a railway station (s 143AF Transport Operations (Passenger Transport) Act 1994 (repealed)) and one count of obstructing police in performance of duties (s 790(1) of the Police Powers and Responsibilities Act 2000). Upon finding the appellant guilty, the learned magistrate ordered her to be of good behaviour for a period of nine months (Youth Justice Act 1992 ss. 175(1)(b) and 188) without a recorded conviction. This is an appeal against those convictions under s 222 of the Justices Act 1886.

1. The grounds of appeal are that the finding of guilt was unreasonable and not supported by the evidence and that the police officer was not acting in the exercise of her duties.

1. The events giving rise to the charges happened on 22 May 2014 at the Roma Street Railway Station. The appellant, who was then still aged 16 years, and two friends were sniffing glue on a platform. Two transit officers, Howe and Treichel, with assistance from a police officer who happened to be at the station, McIlwain, approached the group on a railway platform. McIlwain took bottles (used for inhaling glue) from the other two persons and escorted them downstairs into the concourse. The appellant went to the concourse by the lift. There McIlwain asked the appellant whether she had a bottle. At first she denied having one but she complied with a direction to unwrap a shirt she was holding and handed over a bottle to him. McIlwain then asked to look in her bag and the appellant opened her bag, allowing him to inspect it.

1. The entire transaction, from McIlwain’s point of view, was recorded on his body-worn camera - the video was tendered to the learned magistrate and I have viewed it several times while considering this matter.

1. In the meantime, railway staff had sought assistance from the Police railway squad. Several Police officers approached the group on the concourse. So, according to Howe, there were four rail squad (ie police) officers and the transit officers. McIlwain turned his attention to one of the other young persons and examined him. Senior Constable Pauline Higgins took up with the appellant. McIlwain gave some evidence of what he heard of the exchanges between the appellant and Higgins but his attention was mainly on the young person he was dealing with. The exchanges between the appellant and Higgins are to some degree audible and visible on the video taken from McIlwain’s body-worn camera.

1. Upon viewing the video, one can see that the appellant’s voice is raised after Higgins takes the tobacco pouch from the appellant’s pocket.

1. Higgins’ evidence about that was as follows:

   When I saw Senior Constable McIlwain, I noticed that he had some clear bottles, you know, coke like bottles or water bottles that had a yellow like substance in them. And that was when I approached the female who I now know as [the appellant]. And I stated to her – I identified myself, told her my name was Senior Constable Pauline Higgins from the Police Railway Squad. I asked her if she had anything else on her and that I wanted to search her for any further substances or anything else she had on her. As I began to search her, she was swearing. She was saying the words, “This is fucked. I don’t give a fuck”. There was a lot of other words. There was a lot of noise in the background as well at the time. When I reached her shorts pockets, I could feel something in them. And when I got the property out, I saw that it was tobacco pouches. And she – I had a look inside and see if there was anything else in there and she screamed at me, “Give it back. Give me my tobacco back”, and tried to snatch them out of my hand. I asked her how old she was and she said she was 16 – no, 17. So I then asked her what her date of birth was. She was continuing to yell at me while I was trying to confirm her age. I did warn her that if she continued her behaviour, she would be under arrest, to which she replied to me, “This is fucked”. I then said, “You’re under arrest”. [The appellant] started to walk and she pushed past me. I went to grab her by the left elbow and, at this stage, she flung her arm up away towards me. So I then went to grab her on the wrist and again on the elbow and I was unable to get a proper grip…

2. Constable Davis helped Higgins and then McIlwain came in as well.  Higgins took the appellant to the police office in the Roma Street station and, eventually, she issued the appellant with a notice to appear on charges of creating a nuisance and obstructing police before the appellant was taken to hospital. Other evidence showed that the appellant suffered a humeral shaft fracture which was treated conservatively, in a cast or brace.

1. Higgins said the appellant used expressions like, ‘fuck you’, ‘this is fucked’ and said ‘there was the c-word there.’[1] There were many people on the concourse and the language, Higgins thought, was not appropriate.  After Higgins placed her under arrest, the appellant ‘pushed past me, walked away. As I went to grab her, she flung her arm up.’[2]

   [1]1-20.33

   [2]1-20.40

1. Under cross-examination, Higgins said the appellant swore at her during a pat-down search but agreed the appellant was reasonably compliant.

1. Higgins said she confiscated the tobacco, believing that was within her power because the appellant was 16 years old.[3] Higgins agreed the appellant ‘burred up because she wanted her tobacco back’ but said, ‘but I did ask her to stop her behaviour, which she did not.’[4] When challenged that she did not intend to give the tobacco back, Higgins said, ‘I was prepared to give the tobacco back to an adult.’[5]

   [3]1-22.30-40

   [4]1-23.10

   [5]1-23.15

1. Higgins confirmed the appellant was arrested for creating a nuisance on the railway and then explained that she arrested the appellant to remove her from the concourse to the office so she could do computer checks on the appellant.[6]

   [6]1-23.30

1. The situation was neatly summed up in the following questions and answers:

   But my client could have been given a notice to appear or she could have been given a caution at that point in time, couldn’t she? ---At the point in time, your client’s behaviour was interfering with the peaceful passage of rail passengers in the concourse of the train station.

   Yeah, because you wouldn’t give her tobacco back? ---I asked her to calm down several times.

2. McIlwain and Davis said they did not hear the reason for arrest but presumed there had been an arrest for public nuisance because of the swearing in a public place.[7]

   [7]McIlwain at 1-14.20-25; Davis at 1-26.10 and 1-27.15

1. The appellant’s solicitor submitted to the learned magistrate that Higgins exceeded her powers when she confiscated the tobacco and there were no grounds for arresting the appellant; the appellant had committed no tobacco offence; Higgins should have returned the tobacco, perhaps cautioned her and sent her on her way. He also argued that the force used, which resulted in the fracture, was excessive and so the arrest was unlawful.

1. The trial prosecutor argued the arrest was properly made for the charge of creating a disturbance, given the evidence of the appellant’s loud use of foul language directed at police. He also submitted Higgins had power, under s. 43 of the Police Powers and Responsibilities Act, having found tobacco in the appellant’s possession, to ask for her age. It was in this process the appellant became very loud and the primary offence of creating a disturbance was committed.[8]

   [8]1-37.45 – 1-38.20

1. The learned magistrate reviewed the evidence of the appellant’s loud and aggressive language and of the notice that passers-by took.  Her Honour was given no assistance by the parties at trial[9] as to the law relating to a power to seize tobacco, but her Honour was satisfied, on the evidence of Higgins and from watching the video, that the appellant had been creating a disturbance before her tobacco was taken from her.[10] In my respectful view, that finding is not open on a viewing of the video from McIlwain’s body camera.  On the contrary, one can hear the appellant’s raised voice only an appreciable time after the tobacco has been taken from her.  Where Higgins says otherwise, her evidence cannot be accepted as reliable.

   [9]And neither was I on appeal

   [10]Reasons t5 l10 and l30

1. At the relevant time, s. 143AF of the Transport Operations (Passenger Transport) Act 1994 provided:

   A person must not create a disturbance or nuisance while on
   or in public transport infrastructure or a public passenger
   vehicle, unless the person has a reasonable excuse.
   Maximum penalty—40 penalty units or 6 months
   

   [11]The section was repealed by s. 68 of the Transport and Other Legislation Amendment Act 2014, with effect from 29 September 2014, that is, before the trial of the charge. The point seems not to have been raised at trial and was not on appeal, so, no submissions have been received on the effect of the repeal. On its face, s. 11 of the Criminal Code provides the appellant could not be punished for the act constituting the offence.  Because I have concluded the conviction for the charge must be set aside, it is unnecessary to consider the point further.

   imprisonment.[11]

2. Section 43 of the Police Powers and Responsibilities Act 2000 relevantly provides that if a police officer either observes a person being supplied a thing that the police officer reasonably suspects is a smoking product; or reasonably suspects a person has just been supplied a smoking product; and reasonably suspects the person is under 18 years, the officer may ask the person to show acceptable evidence of age of the person. The officer may seize the smoking product if the person refuses, or is unable, to comply with the request.

1. Sections 39 and 40 of the Tobacco and Other Smoking Products Act 1998 contain similar provisions.

1. Higgins did not testify to observing the supply of tobacco to the appellant nor to having a suspicion that the appellant had just been supplied.  No other basis was asserted for the refusal to return the tobacco to the appellant – for example, Higgins did not testify that the appellant’s conduct interfered with her ability to search the tobacco pouch for the presence of cannabis. Higgins’ evidence and actions as seen on the video compel the conclusion that she simply determined to keep the tobacco, seemingly acting on a mistaken view of the law. The appellant’s conduct which the prosecution relied on as amounting to the creation of a disturbance followed the unlawful confiscation of her tobacco.

1. If, which I doubt, swearing at police in a public place without more constitutes creating a disturbance, it has not been established that the appellant did so without reasonable excuse.  No basis has been laid for Higgins’ failure to return the tobacco to the appellant.  Differently from the learned magistrate, my assessment of all of the evidence is that the appellant’s loud and aggressive language was in response to having her tobacco taken.  Upon my review of the record I am not satisfied the offence of creating a disturbance or nuisance while on or in public infrastructure without reasonable excuse was established beyond reasonable doubt.

1. But it is another thing to say the officer was acting unlawfully when arresting the appellant because she did not have reasonable grounds to suspect the commission of the offence.

1. Among other things, s. 365 of the Police Powers and Responsibilities Act provides,

(1)   It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons ……; and

(2)   ….Subject to the Youth Justice Act 1992, section 13, it is lawful for a police officer to arrest a child without warrant if the police officer reasonably suspects the child is committing or has committed an offence.

1. Section 13 of the Youth Justice Act provides that a police officer may use the power of arrest under the Police Powers and Responsibilities Act 2000, section 365(3) only if the police officer believes on reasonable grounds, relevantly, that the arrest is necessary to prevent a continuation or a repetition of the offence or the commission of another offence.

1. Despite my findings with respect to the charge of creating a disturbance, it was not unreasonable to suspect the appellant was committing the offence and had to be arrested and removed in order to remove the disturbance.  So, it was not for the appellant to resist. It is seriously unfortunate the police eventually applied such force to the appellant that her arm was broken, but by then the offence of obstructing police was complete.

1. In the result, while the conviction on the first charge should be set aside there is no basis for interfering with the finding of guilt of the second.

1. The sentence must be adjusted.  The remaining offence for which the appellant is to be dealt amounted to walking away and flinging up an arm, thereby making it more difficult for police to effect an arrest for an offence that I have concluded was not, beyond reasonable doubt, committed. In all of the circumstances, including the appellant’s age and criminal history, I think it appropriate to vary the order by reducing it to one of 3 months.

1. Given the result, I do not consider it appropriate to make any order for costs but I will consider any written submission received by 9 December 2015.