Austin v Commissioner of Police [2022] QDC 230

DISTRICT COURT OF QUEENSLAND CITATION: Austin v Commissioner of Police [2022] QDC 230 PARTIES: CRAIG AUSTIN (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D 12/2021 DIVISION: PROCEEDING: ORIGINATING COURT: Criminal Appeal Magistrates Court at Bundaberg DELIVERED ON: 29 September 2022 (ex tempore) DELIVERED AT: Bundaberg HEARING DATE: 23 & 29 September 2022 JUDGE: Allen KC DCJ ORDERS: The appeal is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – where the appellant was convicted of an offence pursuant to s 6(1) Summary Offences Act 2005 – where the appellant appeals against conviction pursuant to s 222 Justices Act 1886 – whether behaviour was disorderly or offensive – whether behaviour interfered or was likely to interfere with peaceful passage through or enjoyment of public place – whether the defence of provocation or other statutory defence was available Criminal Code 1899 (Qld), part 1, chapter 5 Justices Act 1886 (Qld), s 222, s 223 Summary Offences Act 2005 (Qld), s 6 Andrews v Rockley [2008] QDC 104 Kris v Tramacchi [2006] QDC 35 APPEARANCES: The appellant appeared on his own behalf H Mangione, Office of the Director of Public Prosecutions (Qld), for the respondent -- 1 of 5 -- 2 [1] On 28 October 2021 in the Magistrates Court at Bundaberg, the appellant was convicted of one charge of committing public nuisance, contrary to section 6(1) of the Summary Offences Act 2005 (Qld) (SO Act), following a trial. The appellant was fined $750 and a conviction was recorded. The appellant has appealed against his conviction pursuant to section 222 of the Justices Act 1886 (Qld). The notice of appeal states the grounds of appeal as: “Provoked by Council giving my rates notice to police without a warrant. Major conflict of interest.” [2] The Acting Magistrate who conducted the trial appropriately explained the trial procedure to the self-represented defendant before hearing evidence from an investigating police officer and the complainant, who was employed as a Senior Investigations Officer with the Bundaberg Regional Council. [3] The complainant gave evidence of a history of dispute between the appellant and the Council, particularly as regards to the appellant’s complaint that the Council had unlawfully provided a copy of the appellant’s rates notice to a police officer. On 7 February 2020 at about 1.50pm, the complainant, in the course of his employment by the Council, spoke to the appellant across a counter in the foyer of the Bundaberg Regional Council premises. The conversation between the complainant and the appellant was only minutes long. Prior to the conversation commencing, the complainant had activated a voice recorder, and the Acting Magistrate heard the contents of the recording of the conversation between the complainant and the appellant. I have also listened to that audio recording. The Acting Magistrate also had in evidence a closed-circuit TV video recording of the foyer area which showed the area at the time of the conversation and alleged offence. I have also viewed that video footage. It shows the actions of the complainant and the appellant as they converse across a counter in the foyer area. Other persons visible in the footage at the time are: two customer service officers behind a counter, at right-angles to the counter at which the complainant and appellant are standing; a customer seated to a desk, to the right of the appellant as he faces across the counter towards the complainant; and at one stage, a customer who enters the foyer during the course of the conversation between the complainant and the appellant, and approaches the customer service operator furthest from the complainant and appellant. -- 2 of 5 -- 3 [4] During the course of the conversation between the complainant and the appellant, the appellant refers to his request of the Council to provide him with certain documentation relating to his complaint concerning the release of his rates notice. The complainant tells him that the investigation into the matter is concluded. The appellant expresses his view that the matter is not “over” as far as he is concerned. During the course of the conversation, the appellant asked the complainant twice, “Do you understand English?”. The appellant says to the complainant three times, in short succession, “Go fuck yourself”. The appellant tells the complainant, “You’re as corrupt as that cunt up there”. The appellant tells the complainant to “fuck off”. The appellant says to the complainant, “I’ve had a gutful of this cunt of a joint and you’re a prick”, and “You’re as bad as fucking Dempsey”. The appellant’s cross-examination of the complainant was mainly directed towards the appellant’s grievance that his rates notice had been unlawfully provided to police and as to the adequacy of the Council’s investigation regarding his complaint as to same. [5] The appellant did not elect to give or call evidence at the trial. The appellant’s submissions to the Acting Magistrate following the conclusion of evidence were directed towards the alleged unlawfulness of the Council providing his rates notice to police. He submitted as follows: All this took place at the Council because they have handed my rates notice over, once again most protected item in the Council. I’d asked him for paperwork and he wouldn’t give it to me. And am I pissed off about this whole situation? Absolutely. So I see that the Council has provoked this from happening, if they didn’t hand over my rates notice. ... So if they didn’t hand over that rates notice, none of this would have taken place. ... And I’m the type of person that doesn’t talk crap. I grew up on a farm, and I say it how it is. [6] The Acting Magistrate gave ex tempore reasons for convicting the appellant. He found that the location of the alleged offence, the foyer of the Council building, was a “public place” as defined in Schedule 2 of the SO Act. He referred to case authority as to the meaning of offensive behaviour and disorderly behaviour, including Andrews v Rockley [2008] QDC 104. He held that the appellant acted in both “a disorderly way” and “an offensive way” within the terms of section 6(2)(a) of the SO Act. In finding that the prosecution had proved each element of the offence beyond a reasonable doubt, the Acting Magistrate also found that the appellant’s behaviour interfered, or was likely to interfere, with the peaceful passage through, or enjoyment of, the public place by a member of the public within the terms of section 6(2)(b) of -- 3 of 5 -- 4 the SO Act. In addressing the appellant’s explanation for his behaviour, the Acting Magistrate stated: “It is not enough for a defendant to simply believe that he was entitled to do what he did in terms of pursuit of what he says is his lawful right to do so.” [7] An appeal against conviction pursuant to section 222 of the Justices Act 1886 (Qld) is to be conducted as a rehearing on the evidence below and on any new evidence produced with leave.1 I am required to conduct a real review of the evidence and the Acting Magistrate’s decision and make my own determination. In order to succeed on such appeal, the appellant must establish a legal, factual or discretionary error. [8] The Acting Magistrate correctly concluded that the events constituting the offence occurred in a “public place” as defined in the SO Act. The foyer of the Council premises was a place “that is open to or used by the public” within the terms of that definition. The Acting Magistrate directed himself as to the objective test with respect to proof of the element that the defendant behaved in “a disorderly way” or “an offensive way”. Given the terms and manner of the appellant’s statements to the complainant, it was open to the Acting Magistrate to find, as he did, that the defendant had behaved in both a disorderly way and an offensive way. Further, given the manner and terms of those statements, and the geography of the foyer, it was open to the Acting Magistrate to find, at least, that the appellant’s behaviour was likely to interfere with the enjoyment of that public place by a member of the public. It was more than “a mere chance of risk” that a member of the public might have his or her enjoyment of that public place interfered with.2 In the circumstances, there was a real prospect of a member of the public, attending the foyer to conduct their business with the Council, being concerned, intimidated or frightened by the vehemence of the appellant’s behaviour. It was open for the Acting Magistrate to be satisfied beyond reasonable doubt of each element of the offence provided by section 6 of the SO Act. [9] As to any available excuse or defence, none of the provisions of part 1, chapter 5 of the Criminal Code 1899 (Qld) had possible application, and no other potential statutory defence or excuse is to be found elsewhere. 1 Justices Act 1886 (Qld), s 223. 2 Kris v Tramacchi [2006] QDC 35. -- 4 of 5 -- 5 [10] The appellant, in written submissions, has added to his complaint in the grounds of appeal of provocation, by a repetition of his complaint regarding what he contends to have been unlawful behaviour by the Council. The appellant’s argument on appeal goes no further than what was argued before the Acting Magistrate – that is, that he was “provoked”. There is no such available defence or excuse at law. The Acting Magistrate was quite right when he concluded that it is not a defence or excuse for a defendant to simply believe that they are entitled to behave in the way they did, because of a belief that the Council had earlier acted in an unlawful way to the defendant’s detriment. The appellant’s contention that his behaviour might be excused for such a reason is misguided and wrong in law. [11] It was open on the evidence for the Acting Magistrate to be satisfied beyond reasonable doubt of the guilt of the appellant. Upon my review of the evidence, I reach the same conclusion as to the proof of the charge against the defendant beyond a reasonable doubt. The Acting Magistrate has not made any legal, factual or discretionary error. The appeal is dismissed. -- 5 of 5 --