Shorten v The Commissioner of the Queensland Police Service
[2015] QDC 300
•6 November 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Shorten v The Commissioner of the Queensland Police Service [2015] QDC 300
PARTIES:
HADYN BENJAMIN SHORTEN
(appellant)v
THE COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(respondent)FILE NO:
75 of 2015
DIVISION:
Appellate
PROCEEDING:
Appeal under s 222 of the Justices Act
DELIVERED ON:
6 November 2015
DELIVERED AT:
Maroochydore
HEARING DATE:
6 November 2015
JUDGE:
Long SC, DCJ
ORDER:
1. The orders made in the Magistrates Court at Bundaberg on 14 May 2015 in relation to the complaint of the offence of disobedience to lawful order issued by statutory authority, are set aside, and in lieu thereof:
(a) there be an adjudication that the appellant is not guilty of that offence; and
(b) the complaint to the offence of disobedience to lawful order issued by statutory authority is dismissed, and the complainant is to pay to the defendant his costs in the sum of $1750.
2. The orders made in the Magistrates Court at Bundaberg on 14 May 2015 in relation to the complaint of the offence of obstructing a police officer in performance of duties, are confirmed.
CATCHWORDS:
APPEAL – s222 Justices Act 1886 (Qld) – appeal against conviction – where the appellant had been convicted of the offences of disobedience to lawful order issued by statutory authority (being a direction contained in a search warrant) and obstructing a police officer in performance of duties (during the subsequent arrest for the first offence) – where respondent concedes that search warrant was not issued lawfully
Commonwealth of Australia Constitution Act 1900 (Cth) s 109
Crimes Act 1914 (Cth) div IAA, part II
Criminal Code Act 1899 (Qld) s 205
Judiciary Act 1903 (Cth) s 78B
Justices Act 1886 (Qld) ss 158, 158B, 159, 225, 232(4),
Justices Regulation 2014 (Qld) sch 2
Police Powers and Responsibilities Act 2000 (Qld) ss 150, 154, 790
Radiocommunications Act 1992 (Cth) ss 47, 269COUNSEL:
M. Messenger (Solicitor) for the Appellant.
A. Stark for the Respondent.
SOLICITORS:
Messenger Legal for the Appellant.
Queensland Police Service Solicitor for the Respondent.
| AUSCRIPT AUSTRALASIA PTY LIMITED ACN 110 028 825 T: 1800 AUSCRIPT (1800 287 274) |
TRANSCRIPT OF PROCEEDINGS
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DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE LONG SC
No 75 of 2015
HADYN BENJAMIN SHORTEN
v.
COMMISSIONER OF POLICE
MAROOCHYDORE
10.54 AM, FRIDAY, 6 NOVEMBER 2015
JUDGMENT
Any Rulings that may be included in this transcript may be extracted and subject to revision by the Presiding Judge.
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HIS HONOUR: By notice of appeal filed on 15 May 2015, the appellant appeals his convictions, in the Magistrates Court at Bundaberg, on 14 May 2015, of the offences of:
(1) disobedience of a lawful order, pursuant to section 205 of the Criminal Code; and
(2) obstruct police, pursuant to section 790 of the Police Powers and Responsibilities Act 2000.
In respect of his conviction of the first offence, the appellant was sentenced to six months imprisonment and his parole release date set at 14 July 2015, that is, after serving two months. And on the second offence, he was fined $650, with two months allowed for payment, before reference to SPER for recovery.
It may be noted that the appellant also appealed against the sentence imposed on the first conviction, on the ground of manifest excessiveness and that he was on 25 May 2015 granted bail pending appeal.
In broad compass, the following circumstances may be noted in respect of the appeal against these convictions:
(a)The offence prescribed by section 205 of the Criminal Code required proof of disobedience of a lawful order of a relevant kind and as was alleged here, that might include orders of the kind that may be included in a search warrant issued pursuant to section 150 of the Police Powers and Responsibilities Act 2000, and in accordance with section 154 of that Act;
(b)That warrant was issued by a Magistrate in Bundaberg, on 8 October 2014, expressly in relation to the investigation of an offence pursuant to section 47 of the Radiocommunications Act 1992 (Cth): a Commonwealth offence. The warrant was also expressly directed at permitting the seizure of property which may have been used, including computer equipment, in connection with the commission of such an offence;
(c)Because that warrant was issued by a Magistrate, it expressly contained orders pursuant to section 154 of the Police Powers and Responsibilities Act 2000, that the person in possession of access information for a storage device in that person’s possession to, amongst other things, give access to the storage device and the access information, to a police officer, so as to enable access to stored information on the device;
(d)It was the appellant’s failure to provide the access code or password to a seized laptop computer that was the gravamen of the first offence; and
(e)The second offence was found to be constituted by the appellant’s resistance to his arrest for the first offence, when the investigating police returned to his residence, later on the same day and after they had determined that the stored information on the laptop could not be accessed because it was “PIN locked”.
In written submissions filed by the appellant in support of his appeal, he challenged the lawfulness of both the search warrant and therefore the order pursuant to section 154 of the Police Powers and Responsibilities Act 2000 and, on different grounds, his subsequent arrest, and on those bases, his convictions.
As to his appeal against the first conviction, for the offence of disobedience of lawful order, the appellant had contended that:
(b)the search warrant was not lawfully issued pursuant to section 150 of the Police Powers and Responsibilities Act 2000 and therefore no lawful order made pursuant to section 154. That was on the basis that section 150 did not allow for the issuance of a search warrant for the investigation of an offence against the laws of the Commonwealth. In particular, the contention is, or was, that section 150(1)(a), in authorising or permitting the issuance of a search warrant “to obtain evidence of the commission of an offence”, is referring only to offences against the law of Queensland, and does not include any offence against the law of the Commonwealth; and
(c)alternatively and if section 150 of the Police Powers and Responsibilities Act 2000 does have application to the investigation of Commonwealth offences, it is thereby invalid, having regard to the application of section 109 of the Australian Constitution, when regard is had to the specific provisions in section 269 of the Radiocommunications Act 1992 (Cth), in respect of the issuance of search warrants in respect to the investigation of offences under that Act and also the more general provisions in Part II, Division 1AA Crimes Act 1914 (Cth) and in respect of search warrants in relation to Commonwealth offences.
Although the first contention was not so developed, the second contention was raised before the Magistrate, at trial in Bundaberg. That is, a different Magistrate to the one who had issued the warrant. And no specific reference was then made to the provisions of the Crimes Act 1914 (Cth). For present purposes, it is only necessary to note that the first contention is a logical commencement point for the contention that was raised as to the validity of the search warrant and the subject order contained in it and that the Magistrate at trial, found that the search warrant was issued according to law, on the basis that section 150 of the Police Powers and Responsibilities Act 2000 was applicable to Commonwealth and State offences. He also rejected the argument as to inconsistency with the provisions of the Radiocommunications Act 1992 (Cth).
This matter came before the Court on 23 October 2015 for review, in consequence of the identification of the application of section 78B of the Judiciary Act 1903 (Cth), and the necessity for notices to be issued pursuant to that section and in accordance with directions made by the Court on 21 August 2015.
Those directions also related to the filing of further written submissions of the parties and in that regard, there was a significant development. In the further written submissions filed by the respondent on 8 October 2015, it is acknowledged that previously expressed and contrary contentions of the respondent were abandoned, and it was expressly conceded that section 150 of the Police Powers and Responsibilities Act 2000 refers to and only applies to a Queensland offence and does not include or apply to a Commonwealth offence, in the absence (as is the case) of express statutory provision otherwise.
Therefore, and although the precise basis for this is less important, the critical consideration is that the respondent concedes that the search warrant was not validly issued and that there was no lawful order and accordingly, that an essential element of the offence charged under section 205 of the Criminal Code is not established. It is therefore unnecessary to further consider the contention that has been conceded, or the alternative contention of the appellant as to the application of section 109 of the Commonwealth of Australia Constitution Act 1900, or to be further concerned as to any notice issued under section 78B of the Judiciary Act 1903 (Cth).
A further development was that after considering the position further, the solicitor for the appellant indicated that the appeal, as far as it related to the second offence, was not further pursued. Accordingly, the appeal will be allowed only insofar as it relates to the first offence.
That will necessitate orders to the effect of setting aside the orders of the Magistrate in respect of the offence of disobedience of lawful order and confirming the orders in respect of the “obstruct police” offence. Then and because and pursuant to section 225(1) and (3) of the Justices Act 1886 and in dealing with this appeal, this Court stands in the place of the Magistrate below and has power to “exercise any power that could have been exercised by whoever made the order appealed against”, there will need to be an order dismissing the complaint in respect of the offence of disobedience of lawful order, so that the proceedings in that respect are brought to conclusion.
As far as the proceedings in this Court are concerned, it is correctly noted that the effect of section 232(4) is, that there is no power for any order as to the costs of the hearing and determination of the appeal, in relation to the offence of disobedience of a lawful order, because it is an indictable offence that was dealt with summarily. And no application for costs of the appeal is made by either party.
The appellant does, however, seek that the orders made on dismissal of the complaint relating to the indictable offence, include a sum allowed for costs, as permitted by section 158 of the Justices Act 1886 and as is required, if allowed, and by section 159, to be so specified in the order of dismissal.
The appellant sought a sum of $2630, which as far as the calculation is concerned is largely uncontroversial and appropriately calculated, in due reference to the
limitations imposed by section 158B of the Justices Act 1886 and the Justices Regulation 2014, and in particular schedule 2 of that Regulation. The exception is that an amount of $880, being the fee for the advice of counsel as to the invalidity of the provisions regarding search warrants in the Police Powers and Responsibilities Act 2000 to the investigation of Commonwealth offences, having regard to section 109 of the Australian Constitution, was sought in addition to the amounts otherwise allowed in schedule 2. That was having regard to the contention that such “higher amount is just and reasonable, having regard to the special difficulty, complexity, or importance of the case”, pursuant to section 158B(2) of the Justices Act 1886.
However, it is unnecessary to further consider this, or any other issue, as to this application for costs, as the respondent concedes that the application as far as it relates to the payment of an amount of $1750, should be allowed and in consequence, the appellant does not press for any additional sum. In effect, there is consent to an order awarding the sum of $1750.
The orders are as follows.
The orders made in the Magistrates Court at Bundaberg on 14 May 2015 in relation to the complaint of the offence of disobedience to lawful order issued by statutory authority, are set aside, and in lieu thereof:
(a)there be an adjudication that the appellant is not guilty of that offence; and
(b)the complaint for the offence of disobedience to lawful order issued by statutory authority, is dismissed and the complainant is to pay to the defendant his costs in the sum of $1750.
The orders made in the Magistrates Court at Bundaberg on 14 May 2015 in relation to the complaint of the offence of obstructing a police officer in performance of duties, are confirmed.
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