Carter v The Commissioner of Police [2017] QDC 286

DISTRICT COURT OF QUEENSLAND CITATION: Carter v The Commissioner of Police [2017] QDC 286 PARTIES: LEE ST. JOHN CARTER (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO/S: D32/17 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Hervey Bay District Court DELIVERED ON: 6 December 2017 DELIVERED AT: Maroochydore District Court HEARING DATE: 10 November 2017 JUDGE: Robertson DCJ ORDER: Appeal dismissed. CATCHWORDS: APPEAL: where appellant has for a number of years campaigned to stop a speedboat race conducted annually on Hervey Bay, where leading up to the race on the day of the offence, the appellant publicised his intention to disrupt the race, whether prosecution had satisfied the onus on it to exclude reasonable excuse, whether his Honour reversed onus of proof. Legislation Police Powers and Responsibilities Act 2000 ss 44, 46(1)(d), 48 & 791(2) Justices Act 1886 ss 222(1) & 223 COUNSEL: KL Overell of counsel for the Respondent SOLICITORS: LSJ Carter self-represented litigant for the Appellant Commissioner of Police for the Respondent [1] On 3 April 2017, after a short trial, the appellant was convicted by his Honour Magistrate Gutteridge in the Hervey Bay Magistrates Court of one count of an offence -- 1 of 12 -- 2 pursuant to s 791(2) of the Police Powers and Responsibilities Act 2000 (The Act) namely: “That on 20 November 2016 at Torquay in the State of Queensland the (appellant) without reasonable excuse contravened a direction given by a police officer namely Senior Constable Richard Whatman under the Police Powers and Responsibilities Act 2000, namely to move on.” [2] His Honour released the appellant on a $300 good behaviour bond and did not record a conviction. His Honour’s reasons for judgment were delivered ex tempore. The appellant was self-represented and has represented himself on the appeal. [3] On 3 May 2017 he filed a notice of appeal to which is attached an outline of argument. Necessarily his pleading suffers from the usual problems associated with lay people representing themselves but I agree with the respondent there appear to be three grounds of appeal: (a) The appellant had a reasonable excuse in respect of the direction he was given; (b) The magistrate reversed the onus of proof in respect of “reasonable excuse” per s 791(2) of the Act; and (c) The appellant was not permitted to tender relevant and admissible documents at the summary trial, and was thereby denied procedural fairness and the trial was therefore unfair. The relevant legal principles [4] Pursuant to s 223 of the Justices Act 1886 an appeal such as this under s 222(1) of that Act is by way of hearing on the evidence before his Honour, although this court -- 2 of 12 -- 3 has power to give either party leave to adduce “new evidence, if satisfied that there are special grounds”. [5] The court must conduct a real review of the evidence before the Magistrate and make up its own mind about the case, however this court can only interfere with the decision below where the appellant can demonstrate, having regard to the evidence before the appellate court (which includes the evidence before his Honour) that there has been some factual, legal or discretionary error. The evidence below [6] Senior Constable Whatman was the first witness for the prosecution. He told the court that he was on duty on Hervey Bay beach at Torquay at approximately 9.40 am on Sunday, 20 November 2016 at a time when a speed boat race was going to be contested on the day in that area. He had been briefed that morning at the police station and had been supplied with an aerial map which later became Exhibit 1 which depicted the beach front area from Point Vernon to the Urangan Pier with marked coordinates. He was also in possession of a document that became Exhibit 2 which is a permit issued under the hand of Matthew Harris as delegate for the Chief Executive of the Department of National Parks, Sport and Racing dated 28 October 2016 which on its face permitted the Australian Power Boat Association Offshore Council to conduct the Hervey Bay Offshore Super Boat Championships between 19 and 20 November 2016. [7] At approximately 10.15 am he was on Torquay Beach near Tavistock Street with another police officer. It is common ground that the appellant was with a group of people and was seen by Constable Whatman (at about 10.35 am) walking down to the water’s edge dragging a kayak in which was stowed a set of deep water fins. I note -- 3 of 12 -- 4 that the appellant disputes that he had fins but that is of no issue to any ground raised on the appeal. The police officer approached the appellant and activated his digital voice recorder. Although there were problems with sound because it was beach environment there is no dispute as to what was said between them: “I approached Mr Carter. I addressed him, and I identified myself as Senior Constable Richard Whatman from Hervey Bay Police. I said to him I believed that he was going to paddle out to the exclusion zone to try and stop the boat race. He said words similar to me that he was, and I said to him that I was going to give him a move on direction. I asked him if he understood what a move on direction was, and he said yes. I said I’m giving a move on direction to immediately leave Torquay Beach and not return between Point Vernon and the Fraser Island side of the Urangan Pier for a period of 12 hours. I said ‘if you return and enter the beach between those coordinates – between Point Vernon and Urangan Pier within 12 hours, your committing an offence for which you’ll be arrested.’ I said to him that we had a duty of care, that I believed he was placing himself in danger by going out to the exclusion zone and attempting to stop the boat race. He said to me that he was not attempting to stop the boat race. He would be stopping the boat race. At that point he has bent down to pick the front of his kayak and I’ve arrested him for contravening the direction. Constable Woodward and I have walked him to our patrol up on Torquay Road where I’ve stopped the recording. We then conveyed him back to Hervey Bay watchhouse where he was charged with this matter currently before the court.” -- 4 of 12 -- 5 [8] The police officer was asked the basis of his reasonable suspicion and he said “from the information I received at the briefing. I understood he had grave concerns for the dugong and turtle population within Hervey Bay and for that reason he was going to paddle out to the exclusion zone to stop the boat race. I had received further information that if he was approached by water police he would be putting on flippers and snorkelling gear and would enter the water where he believed he could evade police in order to stop the boat race. Because of that I had concerns for his welfare, of either getting hit by a boat or having a medical episode while he was out there so it was for that reason I issued the move on direction.” [9] Prior to giving the move on direction pursuant to s 48 of the Act the police officer gave the appellant a copy of Exhibit 1. [10] The author of Exhibit 2 Matthew Harris gave evidence. He said that he signed the permit that authorised the boat race and that he had power as delegate of the chief executive to sign the permit. He agreed in cross-examination that he was not involved in the assessment process leading up to the decision to issue the permit. This really is the main focus of ground 2 of the appellant’s grounds of appeal. [11] The appellant gave evidence. He did not contest any of Constable Whatman’s evidence. He said it was his intention to paddle out and stop the boat race, and he was fully aware that he could have backed off when given the move on direction. Although he was not permitted to tender a statutory declaration (see copy in documents filed 26 October 2017) his Honour permitted him to give evidence about what appears to have been a campaign by him and others over a number of years to stop the power boat races in Hervey Bay because of his concerns as a scientist about the effect of such an event on protected wildlife such as dugong and turtle. He made it clear that he had stated both to police and in the media that he intended to enter the -- 5 of 12 -- 6 exclusion zone on the Sunday to stop the race in the sense that he expected the water police to intervene which would stop the race. He had told police in advance that he understood he risked arrest. He told his Honour that he had contact with other police officers including a sergeant from the water police prior to 20 November in which he complained about the permit being issued illegitimately and the inappropriateness of the boat race. He told his Honour that he had spoken to a police negotiator named Constable Belinda Neville and told her that “because there were two days of racing, not one, that I would actually formally try to enter the exclusion zone at the start of the first race on the Sunday, which would, as far as I was concerned, mean that the race would have to be stopped until I could be dealt with. I was – I had also actually said that I understood that there was a possibility that I would be arrested because I was entering an exclusion zone but that I was prepared to take those consequences because I believed my actions were appropriate, so I was prepared to have a confrontation with the police, but what I said was that I was actually going to get in the water and try and evade not – not resist arrest but evade arrest.”1 He told his Honour that on the day he again spoke to Constable Neville and she introduced him to Constable Jules Tyson who was a negotiator as well who basically put to him that he had already got a lot of publicity about it and “that it would be a better outcome for all concerned if I was to give my media interview and not proceed out to the race zone, and I said “no, that’s not the way it is at all. That’s not appropriate. I’m not here to make a point. I’m not here to protest, and I’m not here to disrupt the races. I’m going to stop the races. I have legitimate reasons for stopping the races”. He also informed his Honour that he was told by Constable Tyson “if you proceed to the beach you’ll almost certainly be arrested” and I said to him “I’ve already stated that 1 Transcript 1-36, ll 25-38. -- 6 of 12 -- 7 is a likely outcome of what I’m intending on doing. Nothing’s changed. There’s no negotiation. I’m not making a protest. I’m not making a point. I’m intending on putting the water police on the spot to do their job”.2 Later he told his Honour “I don’t consider that the arrest was a valid arrest. I don’t consider that the exclusion zone was a valid exclusion zone. … I had very valid reasons for my concerns about the issuing of permits and my total frustration in being able to even get an acknowledgment from the Department of Parks and Wildlife or from the Department of Environment …”3 He told his Honour “that the permit was not validly issued and he was going to make it clear that he wasn’t going to protest or anything of that nature but was going to go out to make the water police do their job and stop the race by swimming out there or kayaking out there.”4 Appellant’s contentions [12] The appellant again argues before me that the permit Exhibit 2 was invalidly issued therefore the race was unlawful therefore he had a reasonable excuse to stop it by doing what he admits he did. He submits that in giving his reasons his Honour reversed the onus of proof in relation to reasonable excuse and he submits that he was denied procedural fairness by not being permitted to tender documents he wanted to tender which he told me consisted primarily of the documents filed in this court on 26 October 2007 under cover of an email from him dated 25 October 2007. Respondent’s contentions [13] The respondent submits that his Honour did not reverse the onus of proof when the relevant passage from his reasons quoted above are read as a whole. In relation to the 2 Transcript 1-37. 3 Transcript 141. 4 Transcript 1-41. -- 7 of 12 -- 8 “reasonable excuse” argument the respondent submits that on the evidence before his Honour the permit Exhibit 2 was validly issued, therefore the boat race was part of an authorised event and once given a lawful move on notice direction under s 48 of the Act the appellant had no reasonable excuse to disobey that notice by continuing to act upon his intention to paddle out into the exclusion zone to cause the water police to intervene and therefore stop the race. The respondent therefore submits that proof of the valid issuance of the permit was not required given s 46(1)(d) of the Act. [14] In relation to the procedural fairness argument the respondent submits that there was none because there was no denial of procedural fairness because the appellant was allowed to give evidence in those documents and was given considerable leverage by his Honour to articulate his views about the lack of authenticity in the assessment process leading to the issue of a permit. His Honour’s reasons [15] The crux of his Honour’s reasons are as follows: “The defendant was of the view that he has reasonable excuse because the permit was not validly issued and all he was doing – he was not protesting or contravening the direction per se. He was merely going out to make the water police do their job, which would ultimately stop the boat race. He was told that if he continued, he would be arrested. He, in his own evidence, said that he was aware of that. He could have stepped back at any time, did not step back, and then he was arrested. He did co-operate fully with police. He in no way resisted. Indeed he probably saw it as a possible consequence of his behaviour. -- 8 of 12 -- 9 In relation to the matters, I do find that a direction given to Mr Carter was a lawful direction and that the permit that was issued for the power boat race was validly issued on the evidence before me. That Mr Carter made it quite clear to Senior Constable Whatman that he was not going to comply with the direction and even said to Constable Whatman “well, you might as well arrest me now”. Constable Whatman in an attempt to prevent further problems and the fact that he was not – knew that the defendant by his own admission was not going to comply with the direction – arrested the defendant. He had given him a reasonable time to leave, and that was conceded by the defendant, who said he could have walked away. He was aware of that, chose not to do so, and made it quite clear that his intention was to go out into the water to see the water police. At the end of the day, whilst I can understand the feelings and concerns of the defendant, I’m not satisfied that he has raised the defence of reasonable excuse. I am satisfied the prosecution has proved all the elements of the offence beyond reasonable doubt and if the defence was raised in the manner it was raised, it has been negated completely by the prosecution. And I do find the defendant guilty of the offence as charged.” Discussion [16] The material and evidence indicates that the appellant has been involved in a political campaign for many years in Hervey Bay designed to stop the Australian Power Boat Association race in Hervey Bay because of his concerns for wildlife particularly dugong and turtles and generally of the impact on the environment in the Bay. -- 9 of 12 -- 10 [17] The prosecution had the responsibility of proving beyond a reasonable doubt the elements of the charge pursuant to s 791(2) of the Act, namely that on 20 November 2016 the appellant: (a) without reasonable excuse; (b) contravened a direction given by a police officer to move on. [18] The contravention was admitted. There was no suggestion that Senior Constable Whatman did not have the power under s 48 of the Act to direct the appellant to move on in the admitted circumstances of the case i.e. that the appellant had made it clear in advance of the race day that he intended to stop the race and Senior Constable Whatman suspected on reasonable grounds that by the appellant’s actions and admissions he intended to disrupt the boat race. [19] When read as a whole the paragraph quoted above from his Honour’s reasons does not lead me to conclude that he reversed the onus of proof. He was clearly aware that the prosecution had to prove beyond a reasonable doubt the absence of reasonable excuse. The denial of procedural fairness argument has no merit. When one has regard to the documents filed in this court on 26 October 2017 most if not all are simply irrelevant. Most relate to the appellant’s campaign over a number of years including since the 20 November 2016 to protest against a permit being given for the running of the boat race in Hervey Bay. The statutory declaration that he refers to in fact is part of the documents filed on 26 October 2017 and although unsigned it is said to have been dated 16 February 2017. I will proceed on the basis that it was a document in similar form along with the attachments that he attempted to file before his Honour. Clearly he was permitted to give evidence of a lot of these matters albeit much of it irrelevant, and I agree that his Honour gave the appellant significant leeway -- 10 of 12 -- 11 in speaking about his concerns over the years about this particular activity. There was no denial of procedural fairness. [20] The permit Exhibit 2 on its face and in accordance with the evidence of Matthew Harris was lawfully issued and the hearing before his Honour was not the forum to articulate the appellant’s frustrations about the permit system adopted by a number of government departments in relation to this particular event. [21] While considering my decision I raised an issue (not articulated in any of the grounds) that was adverted to by the respondent in its outline at 6.4. Section 46 of the Act is the source of the move on power exercised by Senior Constable Whatman on 20 November 2016 pursuant to s 48(1) of the Act. Relevantly s 46 is in these terms: “46. When power applies to behaviour 1. A police officer may exercise a power under s 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s behaviour is or has been - … (d) disrupting the peaceable and orderly conduct of any event, … at the place.” [22] There is no issue that the beach was a regulated place as defined in s 44 i.e. a public place (see Schedule 6 to the Act). My concern was that the words “reasonably suspects the person’s behaviour is or has been … disrupting the peaceable and orderly conduct of an event”, seem to denote active disruption rather than anticipated disruption. The respondent has provided further submissions. The appellant has provided a large number of documents, and again has concentrated on his frustrations over the permit assessment process, but does not really address this issue. -- 11 of 12 -- 12 [23] I agree with Mr Muir, on behalf of the respondent, that the “event” in this case should not be restricted to the actual boat race which, on the evidence, had not commenced. Rather the “event” should be construed to cover the entire period of time and the area designated by Exhibit 2 i.e. 19 to 20 November 2016 in the tidal water adjacent to Hervey Bay esplanade. To construe the term “event” to only the boat race would be contrary to the evidence i.e. the terms of Exhibit 2. To so narrowly construe the term “event” could lead to what Mr Muir describes accurately as an “untenable and dangerous conclusion”; that is the power to move on could not be exercised prior to the appellant actually disrupting the boat race, with potential for members of the public including the appellant and race participants and the police to be placed in danger. [24] There is no merit in the appeal and it is dismissed. -- 12 of 12 --