R v Coleman

[2001] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:	R v Coleman; exparte A-G Qld  [2001] QCA 243
PARTIES:	R v COLEMAN Patrick John (Applicant) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
FILE NO/S:	CA No 69 of 2001 DC No 339 of 2000
DIVISION:	Court of Appeal Cairns Circuit
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	22 June 2001
DELIVERED AT:	Cairns
HEARING DATE:	21 June 2001
JUDGES:	McMurdo P, Thomas JA, Cullinane J Judgment of the Court
ORDER:	The order of the Court will be that leave to appeal is granted, limited to grounds (f), (h) and (i) of the Application for Leave to Appeal dated 20 March, 2001.Costs of the application will be costs in the cause.It is further directed that the record of proceedings already prepared, together with ex. 1 received during the present application, be the record for the purposes of the appeal.Further direct the respondent to provide further notice to the Attorneys-General under s 78B of the Judiciary Act in relation to the present grant of leave.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – s 7A and s 7(1) Vagrants Gaming and Other Offences Act 1931 – freedom of communication – grant of leave limited to whether s 7(1)(d) and s 7A(1)(c) Vagrants Gaming and Other Offences Act 1931 are constitutionally valid
COUNSEL:	The applicant appeared on his own behalf NV Weston for the respondent
SOLICITORS:	The applicant appeared acted on his own behalf Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  Section 7A Vagrants Gaming and Other Offences Act 1931 creates an offence absolute in its terms to which no defences are available.  Unlike many provisions under that Act the proscribed conduct is not limited to conduct in a public place.  In effect, the section provides, at least in part, for a summary offence of defamation without any of the defences traditionally available.

1. It is arguable that this provision is too widely drawn and is constitutionally invalid in that the Commonwealth Constitution protects freedom of communication between the people concerning political or government matters to the extent recognised by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

1. We have reservations as to whether these considerations have similar application to s 7(1) Vagrants Gaming and Other Offences Act 1931 which involves the commission of offences in a public place and whose objects may well be compatible with the above freedom on the basis that it is intended to prevent breaches of the peace.  However we think it appropriate that the validity of this provision be more fully considered along with the validity of s 7A. 

1. The evidence concerning the respective convictions is inter-related. Leave should be granted in respect of all convictions.

1. So far as any factual issues are raised on this application there was evidence upon which the Magistrate, and in turn the learned District Court Judge, could reasonably find the offences to have been committed, provided of course that the sections under which they were brought were constitutionally valid.  Accordingly, we propose to limit grant of leave to appeal to the questions whether s 7(1)(d) and or s 7A(1)(c) of the Vagrants Gaming  and Other Offences Act 1931 are constitutionally valid.  Those issues are sufficiently raised by grounds (f), (h) and (i) of the Application for Leave to Appeal that appears at pages 290-295 of the record book. 

1. The order of the Court will be that leave to appeal is granted, limited to grounds (f), (h) and (i) of the Application for Leave to Appeal dated 20 March, 2001.  Costs of the application will be costs in the cause.  It is further directed that the record of proceedings already prepared, together with ex. 1 received during the present application, be the record for the purposes of the appeal.  Further direct the respondent to provide further notice to the Attorneys-General under s 78B of the Judiciary Act in relation to the present grant of leave.