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Whitelaw v O'Sullivan

Whitelaw v O'Sullivan

Case [2010] QCA 366 21 December 2010

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SUPREME COURT OF QUEENSLAND

CITATION:

Whitelaw v O'Sullivan [2010] QCA 366

PARTIES:

WHITELAW, Stephen Allan
(respondent/applicant)
v
O'SULLIVAN, Michael
(appellant/respondent)

FILE NO/S:

CA No 59 of 2010
DC No 8449 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2010

JUDGES:

Margaret McMurdo P, Holmes JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal granted.

2. Appeal allowed with costs.

3. The orders of the District Court are set aside.

4. The matter is remitted to the District Court for rehearing.

CATCHWORDS:

POLICE – RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES – PREVENTING BREACHES OF THE PEACE – respondent police officer struck appellant with baton three times whilst appellant affected by capsicum spray – respondent alleged appellant was posing threat – Magistrate found "it would not be and was not reasonable [for respondent] to believe that [appellant] was going to assault" the police officers – respondent found guilty of common assault – on appeal, District Court judge found that Police Powers and Responsibilities Act 2000 (Qld), s 50 authorised use of force which was subjectively reasonably necessary – whether force used in carrying out powers under s 50 must be objectively reasonable – whether District Court judge erred in applying s 50

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DEFENCE OF PERSONS OR PROPERTY – REASONABLE BELIEF IN NECESSITY OF RESPONSE – respondent relied on s 271, s 273 and s24 Criminal Code 1899 (Qld) – District Court judge set aside conviction
– judge considered that there was insufficient evidence to find beyond reasonable doubt that respondent was not acting in self-defence or aiding in self-defence (s 271 and s 273) and that respondent did not honestly but mistakenly believe on reasonable grounds that appellant posed a threat of violence (s24) – judge did not state which evidence was accepted – judge did not make clear that prosecution had failed to prove beyond reasonable doubt that force used by respondent was not "reasonably necessary to make effectual defence against the assault" – whether judge erred in reasons for setting aside the conviction

Acts Interpretation Act 1954 (Qld), s 14A
Criminal Code 1899 (Qld), s 24, s 260, s 271, s 273
Police Powers and Responsibilities Act 2000 (Qld), s 5, s 50, s 651

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied
Osgood v Queensland Police Service [2010] QCA 242, cited
R v Allwood [1997] QCA 257, cited
R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420, cited
Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited
Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, applied

COUNSEL:

P J Callaghan SC for the appellant
B…

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.

Continue reading Whitelaw v O'Sullivan

Details

AGLC: Whitelaw v O'Sullivan [2010] QCA 366
Case: [2010] QCA 366
Decision Date: 21 December 2010

CaseChat Overview and Summary

The case of Whitelaw v O'Sullivan involved a dispute between the appellant, Mr Whitelaw, and the respondent, Mr O'Sullivan, a police officer. The appellant claimed that the respondent struck him with a baton three times while he was affected by capsicum spray, and the respondent was found guilty of common assault by the magistrate. The respondent argued that he acted in self-defence and that the force used was reasonably necessary under the Police Powers and Responsibilities Act 2000 (Qld). The District Court judge found that the respondent's actions were authorised by section 50 of the Act, but set aside the conviction as there was insufficient evidence to prove beyond reasonable doubt that the respondent was not acting in self-defence or that he did not honestly but mistakenly believe on reasonable grounds that the appellant posed a threat of violence. The appellant appealed to the court on the grounds that the District Court judge erred in applying section 50 of the Act and in the reasons for setting aside the conviction.

The legal issues in this case were whether the force used by the respondent was objectively reasonable and whether the District Court judge erred in applying section 50 of the Act. The court had to determine whether the force used by the respondent was authorised by the Act and whether it was reasonably necessary to make effectual defence against the assault. The court also had to consider whether the District Court judge erred in the reasons for setting aside the conviction.

The court found that the District Court judge erred in applying section 50 of the Act. The court held that the use of force must be objectively reasonable, not just subjectively reasonably necessary. The court also found that the District Court judge did not state which evidence was accepted and did not make clear that the prosecution had failed to prove beyond reasonable doubt that the force used by the respondent was not "reasonably necessary to make effectual defence against the assault." The court held that the judge's reasons for setting aside the conviction were inadequate and that the conviction should be set aside.

The court allowed the appeal and set aside the orders of the District Court. The matter was remitted to the District Court for rehearing. The court granted the appellant leave to appeal and ordered that the costs of the appeal be paid by the respondent.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed with costs.

3. The orders of the District Court are set aside.

4. The matter is remitted to the District Court for rehearing.

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.

Citations

AGLC Citation

Whitelaw v O'Sullivan [2010] QCA 366

Most Recent Citation

Commissioner of Police v Flanagan [2018] QCA 109

Cases citing this decision · 12 of 12 shown

Mohammed v Commissioner of Police
[2022] QDC 265 Para 32

…and circumstances as they may emerge by the time of trial.[74] [73] Commissioner of Police v Flanagan [2018] QCA 109 at [73]; Whitelaw v O’Sullivan [2010] QCA 366 at [27] per McMurdo P. [74] Commissioner of Police v Flanagan [2018] QCA 109 at [73].…
Burke v The State of Qld
[2022] QDC 128 Para 31

…a test of objective necessity.[15] The defendant bears the onus of satisfying that test on the balance on probabilities. [15] Whitelaw v O’Sullivan [2010] QCA 366, [27].…
Sanchez and Sanchez v Commissioner of Police
[2021] QDC 76 Para 8

…the intention of parliament it is to be expected clear language to that effect would have been used.[25] [25] Whitelaw v O’Sullivan [2010] QCA 366, [27].…
R v Elliott
[2020] QDC 243 Para 20

…and to enable the public to better understand the nature and extent of the powers and responsibilities of police officers. (Footnotes omitted.) [24][2010] QCA 366 at [22].…
Boult v WILLIAMS
[2019] WASC 98 Para 3

…pen to the magistrate to decline to make a spent conviction order. [15] Evans v Richards [2015] WASC 53 [18]-[31]; referring to Whitelaw v O'Sullivan [2010] QCA 366 (McMurdo P, Holmes JA, Applegarth J); Burkhart v Bradley [2013] NTCA 5; (2013) NTLR 79 (Riley CJ); Johnson v Ayling [2013] WASC 312 (Simmonds J) at […
Commissioner of Police v Flanagan
[2018] QCA 109 Para 17

…suspicion formed by the police officer and the steps being taken in the exercise of the relevant PPRA power. [50] Whitelaw v O’Sullivan [2010] QCA 366 at [26], [43]. [51] Whitelaw v O’Sullivan [2010] QCA 366 at [27]. [52]AB at 185.1-185.2.…
Hunold v Twinn
[2018] QDC 43 Para 1

…thority, on a member of the public, requires proof of reasonable necessity at the higher end of the ‘sliding scale’. [61] Whitelaw v O’Sullivan [2010] QCA 366 at [27]. [62] Bulsey & Anor v State of Queensland [2015] QCA 187 at [4]. [63] Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J at 361-2.…
Kriston v Commissioner of Police; Thompson v Commissioner of Police
[2017] QDC 105 Para 1

…This was not a case like Whitelaw v O’Sullivan [2010] QCA 366, upon which the appellants significantly rely, where the police officer was charged with assaulting a person in the course of an incident, and the power said to be exercised by him was under s 50 of the PPRA dealing with preventing a breach of the peac…
Marshall v Queensland Police Service
[2015] QDC 261 Para 2

…[16] and [17] (in relation to s 277 of the Criminal Code, the relevant part of which is in the same terms as s 279); and Whitelaw v O’Sullivan [2010] QCA 366 at [26] and [27] per McMurdo P (regarding the objective standard imposed by s 615, in relation to police officers, in which an equivalent form of words app…
Evans v Richards
[2015] WASC 53 Para 5

…The appellant has cited numerous cases from this and other jurisdictions. In Whitelaw v O'Sullivan [2010] QCA 366 the respondent, a police officer, was convicted after trial in the Magistrates Court of common assault, fined $700 with no conviction recorded. He appealed against his conviction to the District Court…
Chapman v Crime and Misconduct Commission & Rynders
[2012] QCATA 16

…LR 135 Neat Holdings v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Rejfek v McElroy (1964-5) 112 CLR 517 Whitemore v O’Sullivan [2010] QCA 366…
Arndt v Rowe
[2011] QDC 313 Para 1

…gistrate was not wrong to consider whether the force used was reasonably necessary, referring to the reasons of McMurdo P. in Whitelaw v O’Sullivan [2010] QCA 366 at [23 – 27] where the President discussed the relationship between the Police Powers and Responsibilities Act 2000 ss. 50 and 52 with s. 615 of that A…

View all 12 citing cases →

Cases cited in this decision · 6 of 6 shown

Osgood v Queensland Police Service
[2010] QCA 242 Para 1

…ver, on one knee and with his hand on the ground. [33] Rowe v Kemper [2009] 1 Qd R 247 at 253 [3]; Osgood v Queensland Police Service [2010] QCA 242 at [20] – [21].…
Rowe v Kemper
[2008] QCA 175

…d [1997] QCA 257, cited R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420, cited Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, applied COUNSEL: P J Callaghan SC for the appellant B W Farr SC for the respondent SOLICITORS: Official Solicitor, Crime and Misco…
Stevenson v Yasso
[2006] QCA 40 Para 1

…led to prove beyond reasonable doubt that his assault was unlawful.[30] [22]Above, [2]. [23](2003) 214 CLR 118; [2003] HCA 22. [24][2006] 2 Qd R 150; [2006] QCA 40. [25] O'Sullivan v Whitelaw [2010] QDC, [7]-[12]. [26]Above, [13]-[17]. [27]Above, [17]. [28]Above, [19], [25], [26]. [29]Above, [26]. [30]Above, [34…
R v Mrzljak
[2004] QCA 420

…ensland Police Service [2010] QCA 242, cited R v Allwood [1997] QCA 257, cited R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420, cited Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, applied COUNSEL: P J Callaghan SC for the appellant B W Farr SC for the res…
Fox v Percy
[2003] HCA 22

…ode 1899 (Qld), s 24, s 260, s 271, s 273 Police Powers and Responsibilities Act 2000 (Qld), s 5, s 50, s 651 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied Osgood v Queensland Police Service [2010] QCA 242, cited R v Allwood [1997] QCA 257, cited R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420, cited Rowe v Ke…
R v Allwood
[1997] QCA 257 Para 1

…re than reasonably necessary to make effectual defence against the reasonably perceived assault, then he was rightly convicted by the magistrate. [31][1997] QCA 257, [11].…

Legislation cited in this decision · 4

Police Powers and Responsibilities Act 2000 (Qld)
5, 50 3 mentions
Acts Interpretation Act 1954 (Qld)
14A 2 mentions (from Para 1)
District Court of Queensland Act 1967 (Qld)
1 mention
Justices Act 1886 (Qld)
1 mention

CITATION:	Whitelaw v O'Sullivan [2010] QCA 366
PARTIES:	WHITELAW, Stephen Allan (respondent/applicant) v O'SULLIVAN, Michael (appellant/respondent)
FILE NO/S:	CA No 59 of 2010 DC No 8449 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2010
JUDGES:	Margaret McMurdo P, Holmes JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted. 2. Appeal allowed with costs. 3. The orders of the District Court are set aside. 4. The matter is remitted to the District Court for rehearing.
CATCHWORDS:	POLICE – RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES – PREVENTING BREACHES OF THE PEACE – respondent police officer struck appellant with baton three times whilst appellant affected by capsicum spray – respondent alleged appellant was posing threat – Magistrate found "it would not be and was not reasonable [for respondent] to believe that [appellant] was going to assault" the police officers – respondent found guilty of common assault – on appeal, District Court judge found that Police Powers and Responsibilities Act 2000 (Qld), s 50 authorised use of force which was subjectively reasonably necessary – whether force used in carrying out powers under s 50 must be objectively reasonable – whether District Court judge erred in applying s 50 CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DEFENCE OF PERSONS OR PROPERTY – REASONABLE BELIEF IN NECESSITY OF RESPONSE – respondent relied on s 271, s 273 and s24 Criminal Code 1899 (Qld) – District Court judge set aside conviction – judge considered that there was insufficient evidence to find beyond reasonable doubt that respondent was not acting in self-defence or aiding in self-defence (s 271 and s 273) and that respondent did not honestly but mistakenly believe on reasonable grounds that appellant posed a threat of violence (s24) – judge did not state which evidence was accepted – judge did not make clear that prosecution had failed to prove beyond reasonable doubt that force used by respondent was not "reasonably necessary to make effectual defence against the assault" – whether judge erred in reasons for setting aside the conviction Acts Interpretation Act 1954 (Qld), s 14A Criminal Code 1899 (Qld), s 24, s 260, s 271, s 273 Police Powers and Responsibilities Act 2000 (Qld), s 5, s 50, s 651 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied Osgood v Queensland Police Service [2010] QCA 242, cited R v Allwood [1997] QCA 257, cited R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420, cited Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, cited Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, applied
COUNSEL:	P J Callaghan SC for the appellant B…