Bismark v Queensland Police Service [2014] QDC 152

1 DISTRICT COURT OF QUEENSLAND CITATION: Bismark v Queensland Police Service [2014] QDC 152 PARTIES: BISMARK, Terrence Woncher (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: DIVISION: Appellate jurisdiction PROCEEDING: Appeal against conviction ORIGINATING COURT: Mount Isa Magistrates Court DELIVERED ON: 2 July 2014 DELIVERED AT: Mount Isa HEARING DATE: 30 June 2014 JUDGE: Bradley DCJ ORDER: Appeal allowed. Convictions for both offences quashed and acquittals entered. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where the appellant was convicted of two offences under s 11 and s 15 of the Summary Offences Act 2005 being trespass and possession of implements to be used in relation to particular offences under s 15 of the Summary Offences Act 2005 – where under s 634 (3) of the Police Powers and Responsibilities Act 2000 before a police officer may start a proceeding against a person under s 11 and s 15 of the Summary Offences Act 2005 the officer must allow that person the opportunity to explain their actions unless not reasonably practicable – where the arresting officer did not give the appellant a reasonable opportunity to explain his actions – whether such an opportunity was reasonably practicable Justices Act 1886 (Qld) ss 222, 223 Police Powers and Responsibilities Act 2000 (Qld) ss 5, 7, 634 Summary Offences Act 2005 (Qld), ss 11, 15 Bunning v Cross (1978) 19 ALR 641 Preston v Parker [2010] QDC 264 Rowe v Kemper [2008] QCA 175 -- 1 of 7 -- 2 COUNSEL: D Castor, solicitor for the appellant J Goldie for the respondent SOLICITORS: Aboriginal & Torres Straight Islander Legal Service for the appellant Director of Public Prosecutions (Queensland) for the respondent [1]. After a hearing in Mount Isa Magistrates Court on the 20th of February 2014 the appellant was convicted of two offences pursuant to sections 11 and 15 of the Summary Offences Act 2005. The first offence was of unlawfully entering a yard and the other of possessing an implement “namely a length of flattened garden hose and a Spider-Man face mask that was to be used for entering a vehicle with intent to commit an indictable offence”. [2]. The facts are that at about 4.25 am on the 25th of July 2013 the occupants of 44 Pamela Street, Mount Isa heard the sound of someone vomiting out the front of their house. They then heard a metal bang coming from the toolbox on the rear of a ute which was parked outside their bedroom window. [3]. The male occupant of the house looked out of the window and saw someone leaving the ute and heading around the back of the house. From the back of the house a person could be seen at another vehicle parked around the back. The male occupant of the house yelled, “fuck off” and the person ran to the corner of the house and was not seen again by the occupants. The occupants described the person as dark and wearing a dark hoodie. The female occupant rang police and the police arrived within minutes. [4]. Constables Hindle and True responded to the call and as they approached Pamela Street in a police vehicle, Constable Hindle saw a male of Aboriginal appearance dressed in a red hooded jumper and knee-length beige coloured cargo shorts walking along the footpath in a direction away from 44 Pamela Street. [5]. At 44 Pamela Street police searched the yard and located a pair of work boots at the side of the house. A patch of vomit was observed at the beginning of the driveway around the footpath. In the meantime, a police officer from the Dog Squad was approaching the address in Pamela Street when he saw a male (the appellant) walking along Pamela Street about a block away from number 44 wearing a dark red hooded jacket with a mask under the top of it. The officer called out to the male to stop and when the person “did a motion that he was going to run” he called out, “stop, you’re under arrest or I’ll release my dog”. The male then stopped and dropped something from his left hand. [6]. The officer arrested the appellant and placed him in the rear of another police vehicle which had arrived by then. The appellant told the officer he was feeling ill, and that he’d just vomited up the street as he’d been drinking with friends earlier that evening. The officer then located a small piece of flattened garden hose from the footpath, which was apparently the item dropped by the appellant. -- 2 of 7 -- 3 [7]. Afterwards, the officer met up with Constables Hindle and True at 44 Pamela Street and told them what had occurred with the appellant. The appellant was bare footed when arrested. Constable Hindle spoke to the appellant in the rear of the police vehicle. She observed a strong smell of petrol emanating from him and that he was seated with his head facing downwards looking towards his lap. She asked him if he had been sniffing petrol but he did not respond and he remained seated and looking downwards. The appellant appeared sleepy. [8]. Constable Hindle and another police officer took the appellant to the watch house where he was asked a series of questions and had items of property taken from him by the watch house shift supervisor. CCTV footage of that process was tendered at the appellant’s trial. I have viewed and listened to that footage, which commences at about 5.32 am. Although it is difficult to hear everything that was said, the following observations can be made: (1) the appellant walks and stands freely and steadily and unaided; (2) the appellant gives responsive and prompt answers to questions – he could say, for example, how much and what sort of alcohol, he had consumed; (3) the appellant takes off his belt and hands his property to the supervisor with no difficulty; (4) the appellant blows into a breathalyser machine and follows instructions to do so with no difficulty; and (5) the appellant signs on an electronic signature pad at least three times, again, with no difficulty. [9]. Constable Hindle’s evidence was that “due to the level of the defendant’s intoxication, I did not provide him with an opportunity to participate in an electronic record of interview, however proffered the charges of trespass and implements used in particular offences” (transcript of the trial page 1-6, lines 35 to 38). Constable Hindle said that she’d been told by the Dog Squad officer that he had smelt petrol on the appellant and that the appellant stated that he had been sniffing petrol throughout the evening as well as consuming alcohol. The Dog Squad officer, however, denied that the appellant told him that he’d been sniffing petrol. In cross-examination Constable Hindle agreed that she did not ask the appellant if he had any reasonable explanation for the alleged trespass and for carrying the mask and piece of hose “due to his intoxication”. Her evidence was that she was in a position in the watch house to see and overhear the appellant’s exchange with the watch house supervisor. [10]. Notes to sections 11 and 15 of the Summary Offences Act refer to the safeguards set out in section 634 of the Police Powers and Responsibilities Act 2000 (“the PPRA”). Section 634 of the PPRA is headed “Safeguards for declared offences under Summary Offences Act 2005”. The section relevantly provides: (1) This section applies to an offence under the Summary Offences Act 2005 that is a declared offence for this Act. (2) A police officer who suspects a person has committed a declared offence must, if reasonably practicable, give the person a reasonable opportunity to explain: …. (b) if the offence involves entering a place – why they entered the place; or …. -- 3 of 7 -- 4 (d) if the offence involves possession of an implement – why the person was in possession of the implement at the relevant time. (3) If: (a) the person fails to give an explanation; or (b) the police officer considers the explanation given is not a reasonable explanation; or (c) because of the person’s conduct, it is not reasonably practicable to give the person a reasonable opportunity to give an explanation; the police officer may start a proceeding against the person for the declared offence. (4) In this section declared offence means an offence against section 11, 12, 13(1), 14, 15, 16 or 17 of the Summary Offences Act 2005. [11]. One of the purposes of the PPRA is to ensure fairness to and protect the rights of persons against whom police officers exercise powers under that Act (section 5(e)). Section 7, subsection (1) of the PPRA states: It is Parliament’s intention that police officers should comply with this Act in exercising powers and performing responsibilities under it. [12]. The section goes on to indicate that an officer who contravenes the Act may face legal consequences. [13]. It was argued on behalf of the appellant before the Magistrate that, pursuant to section 634 of the PPRA, Constable Hindle was obliged to give the appellant a reasonable opportunity to explain why he entered the yard at 44 Pamela Street and why he had possession of the hose and mask. It was also argued that there was no evidence on which it could be said that it was not reasonably practicable to do so and that there was nothing with respect to the appellant’s conduct that made it not reasonably practicable to give him that opportunity. [14]. In his decision the Magistrate found that in the circumstances, particularly having regard to the appellant’s state of intoxication, that he had vomited and was unwell, that there was a strong smell of petrol emanating from him and that he appeared sleepy, it was reasonable for Constable Hindle not to give the appellant the opportunity to explain his whereabouts and what was in his possession that night. [15]. The Magistrate went on to find that in all the circumstances the only rational inference that could be drawn from the evidence was that the appellant was guilty of both offences. [16]. My task in the appellate jurisdiction is not to analyse the correctness or otherwise of the Magistrate’s decision but to decide the case on the evidence before the Magistrate. Section 223 of the Justices Act provides that this appeal is a rehearing on the evidence given in the Magistrates Court. The Queensland Court of Appeal in Rowe v Kemper, [2008] QCA 175 considered a similar provision of the PPRA to -- 4 of 7 -- 5 section 634. That was the provision relating to safeguards for directions or requirements given by police officers (now section 633), pursuant to which a police officer who gives someone a direction or makes a requirement must, if the person fails to comply and if practicable, give a warning to the person and must give the person a reasonable opportunity to comply with the direction or requirement. [17]. Holmes JA noted that the PRPA is silent as to the immediate and practical consequences of the failure of a police officer to comply with the safeguard provisions. Holmes JA doubted that compliance with the requirements is a necessary component to a lawful direction but did come to the conclusion that the requirements, and whether they have been observed, are relevant to whether any offence of contravening a direction has been committed. Holmes JA held that the safeguards provision: …is consistent with the notion of rights protection that an individual to whom the direction is given should not be regarded as having contravened it until those safeguard requirements have been observed. [18]. At paragraph 77 Holmes JA stated that the purpose of the provision in the PPRA is: …that where it is practicable to give warnings, the direction, warnings and an opportunity to comply, having been warned, must be given in that order. It is rational to suppose from the requirement of an opportunity to comply, that if the opportunity is not given, the direction has not been contravened. Since the relevant opportunity is to comply having been given the benefit of the warnings (where practicable), it follows that both warnings and opportunity must precede any contravention. [19]. This construction of section 633 of the PPRA was applied to section 634 by Irwin DCJ in Preston v Parker [2010] QDC 264 where, as here, the offence charged was one of trespass pursuant to section 11 of the Summary Offences Act 2005. Irwin DCJ found that the observance of section 634(2)(b) is a prerequisite to the commission of an offence against section 11 of the Summary Offences Act. I adopt the reasoning of Irwin DCJ in Preston v Parker at paragraph 143 that an individual in the position of the appellant in this case, suspected of entering a yard or possession of an implement, should not be regarded as having committed the offences until the safeguard requirements of section 634 have been observed. This interpretation is confirmed by the explanatory notes to the Summary Offences Bill 2004. [20]. That is not to say however that the observance of the safeguard requirements under section 634 of the PPRA are an ingredient of, or element of, the relevant offences under the Summary Offences Act. [21]. In this case therefore, Constable Hindle, once she suspected the appellant of committing the two offences under the Summary Offences Act, was obliged to give him a reasonable opportunity to explain why he entered the yard at 44 Pamela Street and why he had possession of the Spiderman mask and the piece of hose. She was not so obliged if, because of the appellant’s conduct, it was not reasonably practicable to give him a reasonable opportunity to give an explanation (section -- 5 of 7 -- 6 634(3)(c)). It is only if section 634(3)(c) applies in this case that Constable Hindle could start a proceeding against the appellant for the offences. [22]. This is not a situation where an opportunity to give an explanation has been given, an explanation has in fact been given, but that explanation is considered by the police officer not to be a reasonable explanation (section 634(3)(b)). That was the situation and the nature of the explanation which was the issue being considered in Preston v Parker. That is a question of the police officer’s state of mind. In this case, the issue is whether the appellant’s conduct meant that it was not reasonably practicable for Constable Hindle to give the appellant a reasonable opportunity to give an explanation. That is an issue that must be decided objectively. It is up to the police officer concerned to determine whether an explanation, when given, is not a reasonable explanation. It is a matter of objective consideration whether, because of a person’s conduct, it is not reasonably practicable to give the person a reasonable opportunity to give an explanation. Such a conclusion must be based on reasonable grounds. [23]. The appellant argues that the Magistrate erred in finding that it was not reasonably practicable for Constable Hindle to comply with section 634 of the PPRA in the circumstances of this case. It is argued that the obligation to give an opportunity to explain continued in this case until the appellant was charged with the offences under the Summary Offences Act, and there was nothing in relation to the appellant’s conduct which made it not reasonably practicable to give the appellant the opportunity to give an explanation. [24]. The respondent argues that the appellant’s conduct did make it not reasonably practicable for Constable Hindle to give him a reasonable opportunity to give an explanation, namely, he did initially attempt to run away from the Dog Squad officer. He was intoxicated and smelt of petrol and alcohol when seated in the back of the police vehicle and was seated with his head slumped down. He did not respond to Constable Hindle’s question when in the back of the police vehicle and finally, Constable Hindle believed the appellant’s answers to the watch-house supervisor were not consistent with the questions being asked and were not truthful. [25]. The requirement to give a person suspected of committing offences against sections 11 and 15 of the Summary Offences Act a reasonable opportunity to explain why they entered the place and why they were in possession of the implements is a mandatory prerequisite to a police officer starting a proceeding against the person for those offences. The obligation to give that opportunity continues up until the person is charged with the offences. The question whether a person’s conduct makes it not reasonably practicable to give the person a reasonable opportunity to give an explanation is an objective one. [26]. In this case the evidence is that most likely at the point when the appellant was sitting in the back of the police vehicle, and most certainly when he was in the watch-house, there was nothing in his conduct which made it not reasonably practicable to be given the opportunity to provide an explanation. Constable Hindle should have afforded the appellant that opportunity. She had no reasonable justification for not doing so and she therefore should not have started proceedings against him for the two offences. -- 6 of 7 -- 7 [27]. The failure of Constable Hindle to comply with section 634 of the PPRA is not something I can exercise my discretion to waive on the basis that it was inadvertent and lacking in any consciousness that she was acting unlawfully. This was the thrust of an argument by the respondent. The situation here is not analogous to admitting evidence obtained unlawfully, applying the principles outlined in the High Court in Bunning v Cross (1978) 19 ALR 641, rather it is a situation where the legal foundation for the two charges is not made out. [28]. Accordingly the appeal is allowed and the convictions with respect to each offence quashed and acquittals should be entered. -- 7 of 7 --