Zackary IVES v Michael CURRAN
[2000] QDC 447
•1 December 2000
DISTRICT COURT OF QUEENSLAND
CITATION: Zackary IVES v Michael CURRAN [2000] QDC 447
PARTIES ZACKARY IVES
(appellant)
v
MICHAEL CURRAN
(respondent)
FILE NO.: Gympie Appeal No D 46/2000
DIVISION:
PROCEEDING: Civil
ORIGINATING
COURT: Magistrates Court at Gympie
DELIVERED ON: 1 December 2000
DELIVERED AT: Maroochydore
HEARING DATE: 24 November 2000
JUDGE: J.M. Robertson DCJ
ORDER:(1) The Appeal is dismissed.
(2)The Appellant is to pay the Respondents costs of and incidental to the appeal, to be assessed on the standard basis.
CATCHWORDS: APPEAL; CRIMINAL LAW; appeal against conviction pursuant to s222 Justices Act; appellant convicted of assault on family services officer and police officers, and of obstructing a police officer; whether appellant’s actions excused if the entry of police and family services officers was unlawful; Defence of Premises Against Trespassers under s277(1) Criminal Code; onus of proof; evidentiary onus; Childrens Services Act 1965 ss. 46, 49 and 136
CASES CITED IN
JUDGMENT:
COUNSEL: Ms Sally Wood for the Appellant
Mr Salvatore Vasta for the Respondent
SOLICITORS: Noel Woodall and Associates for the Appellant
The Appellant was convicted after a trial of the following charges:
“That on the 2nd day of February 2000 at Gympie in the State of Queensland Zackary Ives unlawfully assaulted Karen Jane Lowe and thereby did her bodily harm.
AND FURTHER that on the 2nd day of February 2000 at Gympie in the State of Queensland Zackary Ives assaulted Michael William Curran a police officer whilst Michael William Curran was acting in the execution of his duty.
AND FURTHER that on the 2nd day of February 2000 at Gympie in the State of Queensland Zackary Ives assaulted Odette Mary Reid a police officer whilst Odette Mary Reid was acting in the execution of her duty.
AND FURTHER that on the 2nd day of February 2000 at Gympie in the Magistrates Court District of Gympie in the State of Queensland one Zackary Ives obstructed a police officer namely Michael William Curran in the performance of the officer’s duties.”
The offences were all committed in and around a dwelling house in Tamaree Road, Gympie, during the course of one prolonged incident on the afternoon of 2 February 2000
The complainant in count 1, Karen Lowe, is a Family Services Officer with the Department of Families, Youth and Community Care at Gympie. It is common ground that she proceeded to the residence on 2 February 2000 with another Family Services Officer, Kaye, and 2 police officers, Constable Odette Reid (the complainant in count 3) and Sargent Michael Curran (the complainant in counts 2 and 4). The prosecution case was that Lowe and the others proceeded to the residence in Tamara Street as a result of a child protection notification. On their arrival at the residence, Joanne Ives and her eight week old baby, the subject of the notification, and the Appellant, who is the son of Ms Ives, were present. Ms Lowe gave evidence, which was not disputed by any other witness, of what occurred when they arrived at the residence at approximately 3 o’clock in the afternoon on 2 February 2000. Her evidence was accepted by the Acting Magistrate and there is no challenge to any of his careful, and quite extensive, findings of fact.
Ms Lowe gave evidence that she had a conversation with Ms Ives at the front door during which Ms Ives became “panic stricken” and ran into the house, picking up a baby capsule containing the infant and shouting words to the effect of “you’re not taking another one”. Ms Ives then proceeded down some stairs and out of the house. The family services officers and the police followed. Naturally, at this stage, Ms Lowe was concerned for the child’s welfare. During a fracas downstairs, the Appellant struck Ms Lowe to the chest. It was a forceful blow which knocked her to the ground. It is not disputed that she suffered bodily harm as a result. The police officers had been near Ms Ives, they then moved towards the Appellant. Ms Lowe saw him go to a shed and return armed with a metal bar. He was yelling out. She described his conduct as “frightening and very threatening”. She saw him threaten the police officers with the bar. At that stage she turned her attention to Ms Ives and the child. She spoke to Ms Ives suggesting she calm down. Ms Ives then reached into the capsule, grabbed the baby by the right arm and ran to a van parked in the driveway. Ms Lowe was unable to give chase because of pain from her injuries. She gave evidence that the baby was crying as he was carried by the arm to the van. She saw the mother put the baby in the van and then drive at her, forcing her to take evasive action, and then to steer around the Government vehicles parked in the driveway and out onto Tamaree Road. The police officers gave evidence, which was also accepted by the Magistrate, of being threatened with the bar by the Appellant and of the Appellant’s violent resistance when he was arrested by Sergeant Curran.
As I have noted, there is no challenge to the Magistrates findings of fact, nor could there be in light of his exhaustive analysis of the evidence. There is only one issue argued on the appeal. Unfortunately, that issue, concerning the lawfulness of the entry of the house by the various complainants, was placed before the Magistrate in an unnecessarily confusing and prolix manner. Not surprisingly, the Magistrate has been drawn into the confusion and his very lengthy reasons for judgment demonstrate the point. At the end of the trial, which proceeded over three days, there was only the one important issue for the Magistrate to consider, although the submissions made in the court below contained more red herrings than one would expect to find in the North Sea on any given day. At the start of his reasons, the Magistrate misdirected himself regarding the onus on an accused person in relation to so called “defences” under the Criminal Code. It is not for the accused to raise any defences on the balance of probabilities. There is no onus of proof on an accused person. It is clear that the learned Magistrate has confused what is often called an “evidentiary onus” with an onus of proof. The law is that if there is evidence of a defence, that is, if on the evidence a defence is raised, it is then for the prosecution to negative the defence beyond a reasonable doubt. The error by the Magistrate was in the Appellant’s favour and it was not argued otherwise on the appeal.
On the evidence presented in the prosecution case (there was no evidence called by the defence), only one defence was raised and that is a so called ‘Defence of Premises Against Trespassers’, contemplated by section 277(1) of the Criminal Code, which is relevantly in these terms:
“s.277(1)It is lawful for a person who is in peaceable possession of any land…or who is entitled to the control or management of the land…and for any person lawfully assisting him or her or acting by his or her authority to use such force as is reasonably necessary in order to …remove therefrom a person who wrongfully remains therein, provided that he…does not do grievous bodily harm to such person.”
Unfortunately, no one concentrated on this issue, and, to some extent, the submissions made by the Appellant on the appeal suffer from the same problem. The evidence accepted inferentially by the Magistrate was that the mother was “in peaceable possession” of the dwelling house, and, inferentially, the Appellant was a person acting with her authority. The argument advanced on appeal, although expressed by reference to common law and not the Criminal Code, is that the prosecution did not establish beyond a reasonable doubt that from the point the Appellant indicated to the officers, by words or conduct, that they were no longer permitted to remain on the land, the police and family services officers were unlawfully on the premises. To put it in the language of double negatives much favoured by lawyers in this context, the prosecution did not establish beyond a reasonable doubt that the officers were not “wrongfully” on the premises.
As I have noted, there was much confusion during the trial as to the relevant legal issues raised. Predominantly, the judgment is an exhaustive recitation of factual findings and impressions, most of which are not relevant to the only issue raised at the trial. The learned Magistrate has commendably set out to deal with all the issues raised in addresses, which is no doubt the source of the confusion. It is not necessary to do this. There is much to be said for a precise, relevant and focussed approach to decision making by judicial officers, so that the facts accepted are clearly stated and the principles of law applied relevantly to those facts, resulting in a decision.
It is necessary to review the evidence which related to the reasons behind the entry of the premises by the police and family services officers on the day in question. At the trial, the Appellant argued that the original entry of the premises was unlawful and, for reasons not easily identifiable on examination of the transcript, that ‘unlawfulness’ somehow authorised, justified or excused the Appellant’s assaults on the officers. On appeal, there was a change in emphasis, as I have previously noted. The important evidence in this regard came from Karen Lowe. Her evidence on this point was accepted by the Magistrate. She informed the Court that a child protection notification had been received by the Department in relation to the baby on 21 January 2000. I take this to mean that the Department had received information that for at least one of the grounds referred to in section 46 of the Childrens Services Act 1965 (Qld), the Department was concerned that the child may be in need of care and protection. Her evidence was that the Department initially received “basic concerns”, which were added to through further enquiries, and resulted in a SCAN (Suspected Child Abuse and Neglect) Committee recommendation that there be a joint visit by police and Family Services Officers to the premises to conduct an “initial assessment”. I take this to mean an initial assessment as to whether or not an application would then have to be made pursuant to section 49 of the Childrens Services Act 1965. The reason for the police accompanying the officers was “…there (was) a concern that Departmental officers could be at risk if they go out on their own…” (transcript page 22, lines 30-32). Ms Lowe maintained in her evidence that the Childrens Services Act provides the “mandate” to make a home visit to “speak to the parent of the child” to “assess the ability of that parent to care for the child” (transcript page 23, line 9-16). As I have noted, Ms Ives, in effect, took flight with the child upon speaking to Ms Lowe at the front door. The Magistrate found Ms Lowe was entitled, pursuant to section 49(2), to take the child into custody at that point, provided she suspected “on reasonable grounds” that the child was in need of care and protection. Ms Lowe gave evidence that “when we went out to the house and Ms Ives grabbed the baby and ran out the back door, at that time the baby was declared to be under the ….temporary custody of the director-general”. The learned Magistrate seems to advert to this evidence at page 17 (first paragraph) of his reasons, although the evidence was quite explicit that Ms Lowe acted pursuant to s49(2) to take the child into custody only when the mother “grabbed the baby and ran out the back door”. It was only then that section 136 provided any authority to Ms Lowe or the police officers to enter premises and use reasonable force. The section provides:
“136. When so required by the director, any officer of the department or any police officer, with such assistants as are reasonably required for the purpose, may without other authority than this Act-
(a)take into custody on behalf of the director any child in care and (save where this Act otherwise prescribes) any other child who the director is empowered by this Act to take into the director’s custody;
(b)bring such child in care or other child to such hospital, institution or other place as the director directs;
and for such purposes may-
(c)enter upon and into any premises and any part thereof where such child in care or other child is or is supposed or suspected to be; and
(d)use such force as is reasonably necessary to overcome any resistance to the exercise of any power by this section conferred.
It clearly follows that until Ms Lowe had formed a decision to take the child into temporary custody, section 136 provided no authority for the police officers to enter the premises and use reasonable force. To the extent that the Magistrate found that section136 provided any authority for the police to enter the premises and use reasonable force, he was wrong in that conclusion. His finding: “I am satisfied that this young child was a child who the Director is empowered by the Childrens Services Act to take into the Directors custody”, could only be correct by reference to the evidence of Ms Lowe to which I have previously referred. I do not agree at all with the Magistrate that: “…section 136 is a section designed to assist police and departmental officers when dealing with non-cooperative parents in situations such as …here.” The Magistrate was entitled to accept the uncontested evidence of Ms Lowe that the decision to act under section 49(2) had been discussed by her with her manager prior to the visit, but he was not entitled to find that section136 permits entry and reasonable force to be used “when a person will not voluntarily have a child assessed”.
According to the uncontested evidence of Ms Lowe, the decision to act under section 49(2) was not made until Ms Ives ran out of the back door with the child. Her evidence did vary slightly on this point. In evidence in chief, she told the prosecution that she had made the decision “at the point of time when Ms Ives ran back from the house and ran back into the house grabbed the baby in the safety capsule and then ran towards the back door” (transcript page 33, lines 8-12). Based on this evidence, the decision to take the child into temporary custody was taken prior to any assaults by the Appellant. It follows that just prior to the first assault (on Karen Lowe), the family services officers and the police were authorised by section 136, to “enter upon any premises where such other child…is…” and “use such force as is reasonably necessary to overcome any resistance to the exercise of any power by this section conferred”. Even on the basis that it is accepted that the Appellant, on behalf of the person entitled to peaceable possession, told the officers to leave, the officers were entitled to act as they did, subject to using reasonable force. There is no assistance at all in the common law authorities referred to in the Appellant’s outline of argument, in the face of the express authority contained in section 136. The Magistrate was correct, therefore, in finding that at a point immediately prior to the first assault on Ms Lowe, she and the two police officers were acting lawfully. Although the Magistrate did not make any specific finding on the point, his factual findings must necessarily lead to the conclusion that the force used by the Appellant was not “reasonably necessary” in all the circumstances
The argument advanced on the appeal must fail. The appeal is dismissed with costs.
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