Walters v Lawler

[2001] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:	Walters v Lawler [2001] QDC 204
PARTIES:	JASON JAMES WALTERS Appellant And DAMIEN JAMES LAWLER Respondent
FILE NO/S:	D4136 of 2000
DIVISION:	Appeal under s.222 Justices Act 1886
PROCEEDING:	Appeal
ORIGINATING	Magistrates Court
COURT:
DELIVERED ON:	24 August 2001
DELIVERED AT:	Brisbane
HEARING DATE:	23 July 2001
JUDGE:	Judge O’Sullivan
ORDER:	1. The appeal against conviction on the charge of

disorderly conduct is dismissed;

2.   The appeal against conviction on the charge of insulting words is allowed. The conviction is quashed. The appellant is found not guilty;

3.   The appeal against conviction on the charge of threatening words is allowed. The conviction is quashed. The appellant is found not guilty;

4.    The one fine which was imposed for all three offences is set aside;

5.   On the charge of disorderly conduct, the appellant is fined $50. No conviction recorded.

CATCHWORDS:	APPEAL - unlawful arrest – discretion to exclude evidence of insulting words and threatening words
COUNSEL:	Mr P Jensen for the appellant Mr S Smith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent

1. This is an appeal by Jason James Walters against the decision of Mr W J Smith SM

   of 7 September 2000. The appellant appeals against his convictions for insulting

   words and threatening words and submits that his arrest was unlawful.

2. In his Notice of Appeal the appellant also appealed against the conviction for

   disorderly conduct, but he has not pursued this ground of appeal.

3. I agree with counsel for the appellant that the relevant legislation at the time of the

   arrest was section 35 of the Police Powers and Responsibilities Act 1997 and

   because of the concessions made by Constable Lawler in his evidence (refer

   transcript of the Magistrates Court hearing at pages 13-16) the only applicable

   paragraph is (k). I agree with counsel for the appellant that the nature and

   seriousness of the offences did not, in the circumstances, warrant arrest.

4. Constable Lawler said that in arriving at the house it was his intention to escort the

   appellant to the police vehicle and issue him with a Notice to Appear. Instead, he

   arrested him, believing that he could un-arrest him.

5. Counsel for the respondent submits that at the relevant time (30 March 2000) arrest

   without warrant was also governed by section 38 of the Vagrants, Gaming and

   Other Offences Act 1931 (repealed in July 2000).

6. The relevant provisions of the Police Powers and Responsibilities Act 1997 at the

   relevant time were:

(a)	Section 4, which set out the purposes of the Act;
(b)	Section 5:
“(1) It is Parliament’s intention that police officers should comply with this Act in exercising powers and performing responsibilities under it”;
(c)	Section 6:

“Unless this Act otherwise provides, this Act does not affect-

(a) the powers, obligations and liabilities a constable has at common law”;
(d)	Section 7:

“This Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion”;

(e) Section 9:

To the extent of inconsistency, the Police Powers and

Responsibilities Act 1997 prevailed over another Act that conferred

powers or imposed responsibilities on a police officer.

1. I consider that Section 38 of the Vagrants, Gaming and Other Offences Act 1931

   does not assist the respondent to render the arrest of the appellant lawful.

2. The learned Stipendiary Magistrate found (page 7 of his Decision) that Constable

   Lawler informed the appellant that he was under arrest. He further found that “… it

   would appear from evidence of all witnesses who gave testimony before the Court

   that the nature of the offence was not detailed to Walters at that time”.

3. When questioned at the Magistrates Court hearing as to whether he explained the

   reason for arrest to the appellant, Constable Lawler said:-

   “I believe he was fully aware of what he’d done earlier as he stated and I believe he was fully aware of what he was being arrested for. I may not have nominated the specific offence and, once again, I apologise, but I’m sure he was fully aware that he had misbehaved and it was something that he should not be doing.” (Transcript p.18, lines 36-40).

4. Section 113 of the Police Powers and Responsibilities Act 1997 at the relevant time

   was as follows:-

   “A police officer who arrests a person without warrant must, as soon as is reasonably practicable after the arrest, inform the person that the person is under arrest and of the nature of the offence for which the person is arrested.”

   Counsel for the appellant referred me to Hortin v Rowbottom (1993) 61 SASR 313.

5. I agree with counsel for the appellant that the learned Magistrate erred in finding

   that the appellant left the train station when he knew a police officer wanted to

   speak with him, and therefore erred in holding that the arrest was lawful under s.35

   of the Police Powers and Responsibilities Act 1997. The evidence supports the

   finding that the police officer at the railway station did not request the appellant to

   remain at the scene. There is no evidence that the appellant believed that he was

   required to remain at the scene. I agree with counsel for the appellant that s.35 of

   the Police Powers and Responsibilities Act 1997 does not create a power to arrest a

   person if that person leaves the scene of an alleged offence while believing a police

   officer wishes to speak with him.

6. I find that the arrest was unlawful.

7. Counsel for the appellant submitted that:

(a) in the context of an unlawful arrest with force the words were not

criminally insulting or threatening;

(b) if the Magistrate had held that the arrest was unlawful, then in the

exercise of his discretion, he ought to have excluded evidence

constituting the offences of insulting words and threatening words.

1. The words constituting the charge of insulting words to Constable Lawler were

   “You can’t arrest you fucking cunts”. The words constituting threatening words

   were “Release my arm and I will fucking punch you”. Counsel for the appellant

   invites me to consider these words in the context of finding that the arrest was

   unlawful and that force was being applied by the police officers, causing him pain.

2. I consider that even in the context of an unlawful arrest with force, the words used

   were both insulting and threatening.

3. In view of my finding that the arrest was unlawful, it becomes necessary to decide

   whether the evidence of the words used by the appellant ought to be excluded in the

   exercise of a discretion to exclude evidence illegally obtained on the grounds of

   public policy.

4. I consider that the Police Powers and Responsibilities Act 1997 indicates a

   deliberate legislative intent to circumscribe the powers of the police in the interests

   of the public. I consider that the evidence of insulting and threatening words is

   tainted by the unlawfulness of the arrest. For a somewhat similar situation, see R v. Macleod [1991] TasR 144. In view of the fact that the unlawful arrest and the

   words used were inextricably linked and that the offences charged were not serious,

   I consider that the discretion to exclude the words used by the appellant ought to be

   exercised.

5. I make the following orders:-

1. The appeal against conviction on the charge of disorderly conduct is

dismissed;

2.          The appeal against conviction on the charge of insulting words is allowed.

The conviction is quashed. The appellant is found not guilty;

3.          The appeal against conviction on the charge of threatening words is allowed.

The conviction is quashed. The appellant is found not guilty;

4.          The one fine which was imposed for all three offences is set aside;

5.          On the charge of disorderly conduct, the appellant is fined $50. No

conviction is recorded.