Tahi Temoannui v Brett Jason Eric Ford

HUMAN RIGHTS ACT

TAHI TEMOANNUI v BRETT JASON ERIC FORD
[2009] ACTSC 69 (29 June 2009)

CRIMINAL APPEAL – from Magistrates Court – appellant convicted of contravening a police officer’s direction – appeal from conviction – whether finding unsafe and unsatisfactory – whether on the evidence produced before the Magistrate a court could be convinced beyond reasonable doubt of the guilt of the appellant – whether regard was had to irrelevant considerations – whether findings of fact were made that were not open on the basis of the evidence before the court – appeal upheld – conviction and sentence set aside – finding of not guilty substituted
CRIME PREVENTION POWERS ACT 1998 – police direction to move on – condition not to return for six hours – whether prosecution should have amended charge to read contravention of a condition of a direction – definition of vicinity – boundaries of prohibited zone – police officer should frame a direction with sufficient precision
HUMAN RIGHTS ACT 2004 – right to freedom of movement

Crime Prevention Powers Act 1998 (ACT), s 4
Human Rights Act 2004 (ACT), ss 13, 18, 28

Oxford Dictionary
Ball v McIntyre (1966) 9 FLR 237
Forbutt v Blake (1981) 51 FLR 465

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 113 of 2008

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               29 June 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCA 113 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TAHI TEMOANNUI

Appellant

AND:BRETT ERIC JASON FORD

Respondent

ORDER

Judge:  Higgins CJ
Date:  29 June 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The conviction and penalty be set aside.  A finding of not guilty be substituted.

1. On 12 December 2008, Magistrate Doogan convicted the appellant of a charge that he:

… in the Australian Capital Territory, on 18 March 2008, did without reasonable excuse, contravene a police officers direction to leave the vicinity, and had engaged in or was likely to engage in violent conduct in that public place, to wit, Green Square, Jardine Street, Kingston.

1. The appellant was fined $100, court costs $61 and Criminal Injuries Compensation Levy $50, a total of $211, with one month to pay.

1. On 17 December 2008, the appellant filed notice of appeal seeking to have the finding of guilt and, consequently, the penalty imposed, set aside with costs.

1. The charge engaged s 4 of the Crime Prevention Powers Act 1998 (ACT) (the CPP Act). That section provides:

Move-on powers

(1) This section applies if there are reasonable grounds for a police officer to believe that a person in a public place has engaged, or is likely to engage, in violent conduct in that place.

(2) The police officer may direct the person to leave the vicinity of the public place.

(3) The direction may be made subject to either or both of the following conditions:

(a) if the police officer has…