TLE v The The King

[2022] QDC 297

DISTRICT COURT OF QUEENSLAND

CITATION:	TLE v R [2022] QDC 297
PARTIES:	TLE
(applicant)
v THE KING
(respondent)
FILE NO/S:	Indictment No 159 of 2022
PROCEEDING:	Application pursuant to s 590AA Criminal Code Act 1899
ORIGINATING	District Court at Mackay
COURT:
DELIVERED ON:	18 November 2022 (delivered ex tempore)
DELIVERED AT:	Mackay
HEARING DATE:	18 November 2022
JUDGES:	Judge AJ Rafter SC
RULING:	1. Ruling that the police officers were acting lawfully and

therefore, acting in the execution of their duty.

CATCHWORDS:	STATUTORY INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS
– where police officers sought to exercise their powers under s
157B Public Health Act 2005 (Qld) by detaining the applicant and transporting her to a health facility under an Emergency
Examination Authority – whether compliance with s 157C Public
Health Act 2005 (Qld) by the officers is a mandatory pre-requisite to the lawful exercise of their power to detain and transport a
person – whether the officers were acting within their powers and
therefore, in the execution of their duties
LEGISLATION	Acts Interpretation Act 1954 (Qld), s 32CA
Criminal Code Act 1899 (Qld), s 340 Human Rights Act 2019 (Qld), ss 29, 37, 48 Police Powers and Responsibilities Act 2000 (Qld), s 609 Public Health Act 2005 (Qld), ss 6, 7, 157B, 157C, 157E, 157L
CASES	Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28
COUNSEL:	S McLennan for the applicant E A Kelly for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent

Introduction

1. The applicant is charged with three counts of assaulting police officers who were acting in the execution of their duty, with a circumstance of aggravation that she spat on the police officers.[1]

   [1] Criminal Code, s 340(1)(b)(a)(i).

2. On 9 January 2021 the three police officers were assisting ambulance officers to transport the applicant to the Mackay Base Hospital, pursuant to provisions in chapter 4A Public Health Act 2005 (the Act), which empowers ambulance officers and police officers to detain and transport persons who are at immediate risk of serious harm due to what

   appears to be the result of a major disturbance in the person’s mental capacity. The

   Crown case is that while being transported the applicant repeatedly spat at the three police officers, and the spittle landed on each of them.

3. The police had been called in response to a report of a disturbance between the applicant and her mother. It was reported to the police and Queensland Ambulance Service (QAS) staff that the applicant was suicidal and wanted to hang herself with a power cord and cut herself with a razor blade. QAS staff notified police that the applicant was in a nearby park. The police found the applicant in the park and engaged her in conversation. QAS staff joined the police shortly after that.

4. The applicant complained to police and QAS staff about multiple personal problems, but informed them that she just wanted to be left alone. QAS staff observed that the applicant was holding a power cord and a pair of scissors, and had multiple superficial lacerations to her thighs and arms. Due to the threats of suicide and the self-harm wounds on the applicant, QAS staff placed the applicant under an Emergency Examination Assessment (EEA). Police and QAS staff attempted to get the applicant to come with them peacefully, however she became aggressive and uncooperative and had to be moved to a nearby police car.

5. In the police car the applicant began repeatedly striking the driver protection screen

   between the driver’s seat and the back passenger seat. The applicant was placed in

handcuffs for her own safety, and the safety of those around her. She was then moved to
a nearby ambulance.

1. The issue raised by this application relates to the requirements in s 157C(1) of the Act which states that the ambulance officer or police officer must: (a) tell the person that they are being detained and transported to a treatment or care place; and (b) explain to the person how taking that action may affect the person.

2. The applicant’s argument is that compliance with s 157C is a mandatory pre-requisite to

   the lawful exercise of the power to detain and transport the person in s 157B. The applicant submits that the police officers did not comply with the requirements in s 157C. Accordingly, it is submitted that the detention of the applicant was unlawful and therefore the police officers were not acting in the execution of their duty.

3. The Crown submits that a paramedic and a senior constable of police told the applicant of the existence of the EEA. There were multiple attempts to explain the effect of the EEA, but the applicant was belligerent and uncooperative. Accordingly, it is submitted by the Crown that the police officers and ambulance officers were acting within their power and in the execution of their duties.

4. The first issue is whether, as the applicant submits, the requirements in s 157C are mandatory pre-conditions to the exercise of power to detain and transport a person to a treatment or care place. It is therefore necessary to examine the scope and purpose of the Act.

   The relevant provisions of the Public Health Act 2005

5. The object of the Act is set out in s 6, which states:

   6         Object of the Act

   The object of this Act is to protect and promote the health of the Queensland public.

6. The Act provides how the object is to be mainly achieved in s 7:

   7         How object is mainly achieved

   The object is to be mainly achieved by –

   …

   (d) providing for persons who have a major disturbance in mental

   capacity to be transported to a treatment or care place.

   …

157B Ambulance officer of police officer may detain or transport a person

(1) This section applies if an ambulance officer or police officer believes–

(a)	a person’s behaviour, including, for example, the way in which the
person is communicating, indicates the person is at immediate risk of serious harm; and

Example–

a person is threatening to commit suicide;

(b) the risk appears to be the result of a major disturbance in the

person’s mental capacity, whether caused by illness, disability,

injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

(2) For the Police Powers and Responsibilities Act 2000, section 609(1)(a)(i), the police officer may consider advice received from a health practitioner about the person in forming a view as to whether there is an imminent risk of injury to a person.

(3) The ambulance officer or police officer may detain the person and

transport the person to a treatment or care place.

(4) If the treatment or care place is a public sector health service facility that is not an inpatient hospital, the person may only be transported to the facility with the approval of the person in charge of the facility.

(5) If the person is detained and transported to a treatment or care place, other than a public sector health service facility, the person can not be detained at the place unless an Act otherwise requires.

(6) In this section–

inpatient hospital means a hospital where a person may be discharged on a day other than the day on which the person was admitted to the hospital.

157C What ambulance officer or police officer must tell person

(1) The ambulance officer or police officer must–

(a)	tell the person that the officer is detaining the person and transporting the person to a treatment or care place; and
(b)	explain to the person how taking action under paragraph(a) may affect the person.

(2) The ambulance officer or police officer must take reasonable steps to

ensure the person understands the information given under subsection

(1), including by telling the person or explaining the thing to the person–

(a)	in an appropriate way having regard to the person’s age, culture,
mental impairment or illness, communication ability and any disability; and
(b)	in a way, including, for example, in a language, the person is most likely to understand.

1. The applicant submits that mandatory compliance with s 157C as a pre-condition to the

   exercise of power in s 157B is supported by the meaning of the word “must” in s 32CA

   of the Acts Interpretation Act 1954 which states as follows:

32CA Meaning of “may” and “must”

(1) In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.

(2) In an Act, the word must, or a similar word or expression, used in relation to a

power indicates that the power is required to be exercised.

(3) To remove any doubt, it is declared that this section applies to an Act passed after

1 January 1992 despite any presumption or rule of interpretation.

1. The applicant also relies on s 29 Human Rights Act 2019 which provides as follows:

   29       Right to liberty and security of person

   (1) Every person has the right to liberty and security.

   (2) A person most not be subjected to arbitrary arrest or detention.

   (3) A person must not be deprived of the person’s liberty except on

grounds, and in accordance with procedures, established by law.

(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against the person.

(5) A person who is arrested or detained on a criminal charge–

(a) must be promptly brought before a court; and

(b) has the right to be brought to trial without unreasonable delay; and

(c) must be released if paragraph (a) or (b) is not complied with.

(6) A person awaiting trial must not be automatically detained in custody,

but the person’s release may be subject to guarantees to appear–

(a) for trial; and
(b) at any other stage of the judicial proceeding; and
(c) if appropriate, for execution of judgment.

(7) A person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of the

person’s detention, and the court must–

(a) make a decision without delay; and

(b) order the release of the person if it finds the detention is unlawful.

(8) A person must not be imprisoned only because of the person’s inability

to perform a contractual obligation.

1. The applicant relies on s 48(1) Human Rights Act 2019 which requires that all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

   Consideration

2. The approach to the interpretation of a procedure set out in legislation involves consideration of the consequences that would flow from requiring strict compliance.[2]

   [2] D C Pearce, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019) 400 [11.19].

3. In Project Blue Sky Inc v Australian Broadcasting Authority,[3] the High Court considered a statutory provision which required the Australian Broadcasting Authority

   [3] (1998) 194 CLR 355.

   to perform its function in a manner consistent with Australia’s obligations under any

   convention or international agreement. The issue was whether the provision was intended to invalidate an act done in breach of the requirement. The majority (McHugh, Gummow, Kirby and Hayne JJ) said:

“[91]	An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[92]	Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally
classified as directory rather than mandatory.”

1. Their Honours went on to say that a court may focus on the wrong factors if it considers whether a statutory provision is mandatory or directory. Their Honours added:

“[93]	A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in
breach of the provision should be invalid.”

1. It is not difficult to contemplate cases where it may be impossible for an ambulance officer or police officer to comply strictly with the requirements in s 157C. A person in the process of attempting suicide may not speak English. A person may have attempted to commit suicide by taking an overdose and be in a state of semi-

   consciousness. Here, the applicant’s hysterical state made it virtually impossible for

the ambulance officers or police officers to convey the information which the applicant
submits should have been communicated to her.

1. The applicant accepts that the ambulance officers and police officers held the requisite beliefs in s 157B: (a) that her behaviour indicated she was at immediate risk of serious harm; (b) the risk appeared to be the result of a major disturbance in her mental capacity; and (c) she appeared to require urgent examination, or treatment and care, for the disturbance. In those circumstances the ambulance officers and police officers could detain the applicant and transport her to a treatment or care place.

2. Having regard to the objects of the Act I do not consider that non-compliance with s 157C necessarily invalidates the detention and transport of a person to a treatment or care place. In relation to the considerations under s 29 Human Rights Act 2019 the applicant was informed that she was being detained under an EEA and was being taken

   to the Mackay Base Hospital. The applicant’s argument focused on her right to liberty

   in s 29. However she also has a right under s 37(2) not to be refused emergency medical treatment that is immediately necessary to save her life or prevent serious impairment. The applicant accepts there was compliance with s 157C(1)(a) of the Act.

3. It was submitted that there was no explanation given to the applicant about how her detention and transportation to the Mackay Base Hospital would affect her. The applicant refers to the QAS Clinical Practices Procedures: Behavioural Disturbances/Emergency Examination Authority which states as follows:

   Information to be given to the patient regarding how the EEA may affect them should address the following:

• will be detained by QAS ambulance clinician; and

• transported via ambulance to a hospital; and

• will be detained at the hospital for a period of up to six hours; and

• examined by a doctor at the hospital.

1. Mr McLennan, who appeared for the applicant, did not submit that the QAS Clinical Practice Procedures document had the force of law. Mr McLennan submitted that there was not strict compliance with s 157C(1)(b) because the ambulance officers or police

   officers did not explain how the applicant’s detention and transport would affect her

   because she was not told that reasonable force could be used, although it was accepted that an officer tried to tell her that (s 157L). Further, the applicant was not told that she could be detained at the hospital for not more than six hours (s 157E).

2. The recording of the event was played in the course of the hearing.[4] The recording shows the applicant becoming hysterical and non-cooperative when told that she was being taken to hospital. The following exchange occurred:

   [4] Exhibit 1.

   Police officer: Yeh, alright. Hey (applicant), you were saying that you’ve

   been up to Mental Health before.

   Applicant: Yes, I have.

   Police officer: So…

   Applicant: And I’m not again.

   Police officer: Ok, but you know, you know how it all works right?

   Applicant: Yes, I do.

   Police officer: Ok, so you know that if you’re not willing to come with us like

   a grown up, peacefully and calmly…

   Applicant: But why? I…

   Police officer: Listen, listen, let me finish.

   Applicant: I’ve sat here and told you I’m fine.

   Police officer: Yeh, yeh, just let me finish. That we…

   Applicant: (Expletive), if I was going to kill myself, I would have done it
   before youse even rocked up.
   Police officer: We have to take you up, you understand that?

   Applicant: I don’t want to go.

   Police officer: Ok, I understand, mate, it’s a frustration, I understand that.

   Applicant: I’ve already been there.

   Police officer: But it - it’s something that has to happen.

   Applicant: Why can’t you just do a (expletive) EEA here?

   Police officer: Because we’re not -

   Applicant: I don’t want to go to the (expletive) hospital.

   Police officer: We’re not doctors mate, we’re not doctors.

   Applicant: Yeah well the doctors don’t do shit…

3. It is clear from this exchange and observing the recording that the police were taking reasonable steps to ensure that the applicant understood what was occurring. The applicant first raised the issue of an EEA without it having being mentioned by the officers. It is clear then that the applicant frustrated any attempts by the police officer to explain the procedure that was being undertaken.

4. To the extent that there was any non-compliance with s 157(1)(b), this was the result of

   the applicant’s behaviour which no doubt was due to her mental state. The applicant

accepts that the ambulance officers and police officers believed she required urgent
examination or treatment and care for the major disturbance in her mental capacity.

1. In my conclusion the ambulance officers and police officers were acting lawfully by detaining the applicant in accordance with s 157B of the Act. I rule that the police officers were acting lawfully and therefore acting in the execution of their duty.