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
[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.
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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