Whitelaw v O'Sullivan

Case [2010] QCA 366


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…

Continue reading Whitelaw v O'Sullivan

Sign in free to access the full text

Details
AGLC
Whitelaw v O'Sullivan [2010] QCA 366
Case
[2010] QCA 366
Decision Date

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.