Rowe v Kemper

Case [2008] QCA 175


SUPREME COURT OF QUEENSLAND

CITATION:

Rowe v Kemper [2008] QCA 175

PARTIES:

ROWE, Bruce James
(applicant/appellant)
v
KEMPER, Robert
(respondent)

FILE NO/S:

CA No 236 of 2007
DC No 3302 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2008

JUDGES:

McMurdo P, Holmes JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal
2. Allow the appeal
3. Set aside order of the District Court dismissing appeal
    against convictions
4. Quash the convictions for contravening a direction and
    obstruction and enter verdicts of acquittal

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – ASSAULTING, RESISTING, HINDERING OR OBSTRUCTING POLICE OFFICER – OFFICER ACTING IN EXECUTION OF DUTY – ACTING WITHOUT WARRANT – where applicant was escorted out of a public toilet by police after failing to leave at the request of a cleaner – where applicant was directed to leave the Queen Street Mall for eight hours, and was subsequently arrested and convicted on charges of contravening that direction and obstructing the arresting officer in the course of his duties – whether the arresting officer had a reasonable suspicion in relation to the applicant for the purposes of giving a direction – whether the giving of the direction was reasonable and lawful in the circumstances

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – ASSAULTING, RESISTING, HINDERING OR OBSTRUCTING POLICE OFFICER – OFFICER ACTING IN EXECUTION OF DUTY – ACTING WITHOUT WARRANT – where arresting officer did not warn applicant that non-compliance with a direction was an offence in the absence of a reasonable excuse – where no evidence that it was impracticable to give such a warning – whether applicant had sufficient opportunity to comply with the direction – whether direction was contravened – whether arresting officer had  an actual and reasonable suspicion that an offence had been committed for the purposes of the obstruction charge

District Court of Queensland Act 1967 (Qld), s 118, s 119
Justices Act 1886 (Qld), s 222, s 223
Penalties and Sentences Act 1992 (Qld), s 19
Police Powers and Responsibilities Act 2000 (Qld), s 7, s 37, s 39, s 198, s 391, s 394 s 444, s 445(2)

Coleman v Greenland, Donaldson, Powers, etc & The State of Queensland [2004] QSC 037, discussed
Courtney v Thomson [2007] QCA 49, applied
Cox v Robinson [2001] 2 Qd R 261; [2000] QCA 454, discussed
Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257; [2008] HCA 13, 16 April 2008, cited
E (a Child) v The Queen (1994) 76 A Crim R 343, cited
Ferguson v State of Queensland & Anor [2007] QSC 322, applied
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22,…

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AGLC
Rowe v Kemper [2008] QCA 175
Case
[2008] QCA 175
Decision Date

CaseChat Overview and Summary

The case of Rowe v Kemper involved an applicant who was escorted out of a public toilet by police after failing to leave at the request of a cleaner. The applicant was subsequently directed to leave the Queen Street Mall for eight hours. Upon his return, the applicant was arrested and convicted on charges of contravening that direction and obstructing the arresting officer in the course of his duties. The applicant sought leave to appeal against his convictions, challenging the legality of the direction given by the police officer and the sufficiency of the grounds for arrest.

The primary legal issues the court needed to address were whether the arresting officer had a reasonable suspicion in relation to the applicant for the purposes of giving a direction and whether the giving of the direction was reasonable and lawful in the circumstances. Additionally, the court considered whether the arresting officer had an actual and reasonable suspicion that an offence had been committed for the purposes of the obstruction charge, particularly in light of the failure to warn the applicant that non-compliance with the direction was an offence in the absence of a reasonable excuse.

The court found that the arresting officer did not have a reasonable suspicion to justify the direction, and thus, the direction itself was not reasonable or lawful. Furthermore, the court held that the applicant had sufficient opportunity to comply with the direction. Consequently, the court determined that the applicant had not contravened the direction, and the arresting officer did not have an actual and reasonable suspicion that an offence had been committed for the purposes of the obstruction charge. The court concluded that the convictions should be quashed, and verdicts of acquittal should be entered in their place.

Accordingly, the orders of the court were to grant leave to appeal, allow the appeal, set aside the order of the District Court dismissing the appeal against the convictions, and quash the convictions for contravening a direction and obstruction, entering verdicts of acquittal.

Orders

Orders of the court

1. Grant leave to appeal

2. Allow the appeal

3. Set aside order of the District Court dismissing appeal

against convictions

4. Quash the convictions for contravening a direction and

obstruction and enter verdicts of acquittal

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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