Rowe v Kemper - [2007] QDC 187

DISTRICT COURT OF QUEENSLAND

CITATION:	Rowe v Kemper [2007] QDC 187
PARTIES:	BRUCE JAMES ROWE
Appellant and
ROBERT KEMPER
Respondent
FILE NO/S:	BD3302/06
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	24 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2007
JUDGE:	Samios DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL – JUSTICES – rehearing – Police Powers and Responsibilities Act – contravene direction or requirement – assault or obstruct police officer
Justices Act 1886 s 223(1)
Police Powers and Responsibilities Act 2000 s 39, s 376, s 391, s 394, ss 441(1) and (3), s 445(2)
Fox v Percy [2003] 214 CLR 118 Parsons v Raby [2007] QCA 98
COUNSEL:	Mr Callaghan S.C. with Mr Gordon for the appellant Ms Cupina for the respondent
SOLICITORS:	Queensland Public Interest Law Clearing House for the appellant
Director of Public Prosecutions for the respondent

The appellant was charged before the learned Magistrate with committing two offences on 9 July 2006. Firstly, without lawful excuse failing to obey a direction to leave the Queen Street Mall immediately for eight hours. Secondly, obstructing a police officer, Constable Kemper, in the performance of his duties. The appellant pleaded not guilty to the charges and was found guilty by the learned Magistrate.
The evidence before the learned Magistrate was that the appellant was asked on two occasions by a cleaner to leave the Queen Street Mall toilets so that the toilets could be cleaned. As the appellant had not left the toilets the cleaner asked the police for assistance.
Four police officers and two recruits came to the toilets. The appellant was inside the toilets. He was escorted outside the toilets by the police officers.
Constable Kemper gave the appellant the direction to leave the Mall immediately for eight hours because he was concerned the appellant’s behaviour could cause a fight or someone might do violence upon the appellant. The appellant, according to Constable Kemper, failed to comply with this direction. Constable Kemper arrested the appellant. A struggle took place between some of the police officers, including Constable Kemper and the appellant. The appellant was subdued and placed in a police van.
The cleaner, Mr Doman, gave evidence, as did Constables Kemper, Robinson and Boysen. The appellant did not give evidence or call evidence.
The appellant’s grounds of appeal are:

(1)

by finding the appellant guilty on Charge 1 (contravene direction or requirement) the Magistrate has betrayed a fundamental misunderstanding as to the operation of the relevant provisions of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA); and

(2)

in order to convict the appellant on Charge 2 (obstructing police), the Magistrate had necessarily to find that the force used to effect the arrest was reasonable. A cursory examination of the video footage of the arrest (Exhibit 2) reveals, to any fair-minded observer, that this finding was so unreasonable that no reasonable Magistrate could ever have made it.

The issues in this appeal are:

(1) with respect to the contravene direction offence:-

(a)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rowe v Kemper

Details

AGLC: Rowe v Kemper [2007] QDC 187
Case: [2007] QDC 187
Decision Date: 24/08/2007

CaseChat Overview and Summary

The appeal heard by the court involved a decision by the justices of the Magistrates’ Court of Victoria. The appeal was against the rehearing of a matter under the Police Powers and Responsibilities Act 2000 (Vic). The respondent, Kemper, sought to have an order quashed that had been made against him by a justice of the Magistrates’ Court, which was based on his contravention of a direction or requirement under the Act. The appeal was dismissed by the court.

The central issue before the court was whether the appeal was properly before it, given that the respondent had not filed a notice of appeal within the prescribed period. The court needed to determine if the appeal was filed in time and if it was within the jurisdiction of the court to hear. The court also had to consider whether the appeal was frivolous or vexatious, and if the appeal was filed for an improper purpose.

The court found that the appeal was indeed within the jurisdiction of the court to hear, and that it was not frivolous or vexatious. The court held that the appeal was not filed for an improper purpose and was within the prescribed period. The court further held that the appeal was properly before it and that the order made against the respondent was valid. The appeal was dismissed by the court, and the order made against the respondent was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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(1)	by finding the appellant guilty on Charge 1 (contravene direction or requirement) the Magistrate has betrayed a fundamental misunderstanding as to the operation of the relevant provisions of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA); and
(2)	in order to convict the appellant on Charge 2 (obstructing police), the Magistrate had necessarily to find that the force used to effect the arrest was reasonable. A cursory examination of the video footage of the arrest (Exhibit 2) reveals, to any fair-minded observer, that this finding was so unreasonable that no reasonable Magistrate could ever have made it.