Tseng v Queensland Police Service - [2019] QDC 245

DISTRICT COURT OF QUEENSLAND

CITATION:

Tseng v Queensland Police Service [2019] QDC 245

PARTIES:

EN-TZU TSENG
(First appellant)

and

TZU-WEI TSENG
(Second appellant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

MOG11903/18(7), 11908/18(7); D2938/2018, D2939/2018

DIVISION:

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

5 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2019

JUDGE:

McGill SC DCJ

ORDER:

Each appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – Summary offences – appeal – public nuisance offence – whether magistrate right to convict – analysis of evidence.

Summary Offences Act 2005 s 6.

Allesch v Maunz (2000) 203 CLR 172 – cited.
Atkinson v Gibson [2010] QCA 279 – applied.
Barrington v Austin [1939] SASR 130 – distinguished.
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – cited.
Commissioner of Police v Al Shakarji [2013] QCA 319 – cited.
Dillon v Byrne (1972) 66 QJPR 112 – distinguished.
Donnelly v McDonald (1989) 12 Qld Lawyer Reps 111 – distinguished.
Fox v Percy (2003) 214 CLR 118 – cited.
House v R (1936) 55 CLR 499 – cited.
Mbuzi v Commissioner of Police [2015] QDC 257 – considered.
McDonald v Queensland Police Service [2017] QCA 255 – cited.
Parsons v Raby [2007] QCA 98 – considered.
R v Lawley [2007] QCA 243 – cited.
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 – cited.
Rowe v Kemper [2009] 1 Qd R 247 – cited.
Shambayati v Commissioner of Police [2013] QCA 57 – cited.
Walker v Davlyn Homes Pty Ltd [2003] QCA 565 – cited.
White v Commissioner of Police [2014] QCA 121 – cited.

COUNSEL:

Each appellant appeared in person

HR Mangione (solicitor) for the respondent

SOLICITORS:

The appellants were not represented

Office of the Commissioner of Police for the respondent

On 16 July 2018 the appellants were each convicted after a trial of three summary offences, all committed on 10 January 2018. En-Tzu Tseng (“the first appellant”) was convicted of one public nuisance offence, one count of obstructing a police officer and one count of assaulting a police officer. Tzu-Wei Tseng (“the second appellant”) was convicted of one public nuisance offence and two counts of obstructing a police officer. After hearing submissions the magistrate ordered that no conviction be recorded, and each of them was fined $1,200 in respect of the three offences of which they were convicted, and ordered to pay $300 witnesses’ expenses. The penalty was referred to SPER for payment. Each has appealed against conviction, and submits that each of the charges should be dismissed.

The appeal is brought under the Justices Act 1886, s 222, and is by way of rehearing on the record. Neither appellant sought leave to lead further evidence, which requires satisfaction with the fresh evidence rules: s 223.[1] On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences…

Grounds of appeal

[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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Details

Case: [2019] QDC 245
Decision Date: 5 December 2019

CaseChat Overview and Summary

The case of Tseng v Queensland Police Service involved an appeal against a conviction for a public nuisance offence. The appellant, Mr. Tseng, was charged and convicted by a magistrate for engaging in conduct that constituted a public nuisance. The conviction was subsequently appealed, with the primary issue being whether the magistrate had the legal authority to convict Mr. Tseng of the offence. The Queensland Police Service, represented by the respondent, defended the conviction, arguing that the magistrate correctly applied the law and had jurisdiction to convict Mr. Tseng.

The central legal issue revolved around the interpretation and application of the relevant statutory provisions that define public nuisance. The court had to determine if the magistrate correctly exercised their discretion under the legislation in convicting Mr. Tseng. This involved a detailed analysis of the evidence presented during the trial and whether the conduct of Mr. Tseng indeed constituted a public nuisance as defined by the law. The court also needed to consider the extent of the magistrate's jurisdiction and whether any procedural errors occurred during the trial that could have influenced the outcome.

The court reviewed the evidence and the legal framework governing public nuisance offences. It concluded that the magistrate properly exercised their discretion and correctly applied the law in convicting Mr. Tseng. The evidence presented was deemed sufficient to establish that Mr. Tseng's conduct constituted a public nuisance. The court found no procedural errors that would warrant a reversal of the conviction. Therefore, the appeal was dismissed, upholding the original conviction by the magistrate. The reasoning of the court focused on the proper interpretation of the statutory provisions and the magistrate's jurisdiction in such matters.

Each appeal is dismissed.

Orders

Orders of the court

Each appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tseng v Queensland Police Service [2019] QDC 245
PARTIES:	EN-TZU TSENG (First appellant) and TZU-WEI TSENG (Second appellant) v QUEENSLAND POLICE SERVICE (Respondent)
FILE NO/S:	MOG11903/18(7), 11908/18(7); D2938/2018, D2939/2018
DIVISION:
PROCEEDING:	Criminal Appeal
ORIGINATING COURT:	Magistrates Court at Holland Park
DELIVERED ON:	5 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2019
JUDGE:	McGill SC DCJ
ORDER:	Each appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – Summary offences – appeal – public nuisance offence – whether magistrate right to convict – analysis of evidence. Summary Offences Act 2005 s 6. Allesch v Maunz (2000) 203 CLR 172 – cited. Atkinson v Gibson [2010] QCA 279 – applied. Barrington v Austin [1939] SASR 130 – distinguished. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – cited. Commissioner of Police v Al Shakarji [2013] QCA 319 – cited. Dillon v Byrne (1972) 66 QJPR 112 – distinguished. Donnelly v McDonald (1989) 12 Qld Lawyer Reps 111 – distinguished. Fox v Percy (2003) 214 CLR 118 – cited. House v R (1936) 55 CLR 499 – cited. Mbuzi v Commissioner of Police [2015] QDC 257 – considered. McDonald v Queensland Police Service [2017] QCA 255 – cited. Parsons v Raby [2007] QCA 98 – considered. R v Lawley [2007] QCA 243 – cited. Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 – cited. Rowe v Kemper [2009] 1 Qd R 247 – cited. Shambayati v Commissioner of Police [2013] QCA 57 – cited. Walker v Davlyn Homes Pty Ltd [2003] QCA 565 – cited. White v Commissioner of Police [2014] QCA 121 – cited.
COUNSEL:	Each appellant appeared in person HR Mangione (solicitor) for the respondent
SOLICITORS:	The appellants were not represented Office of the Commissioner of Police for the respondent