Farrell v Queensland Police Service [2006] QDC 402

DISTRICT COURT OF QUEENSLAND CITATION: Farrell v Queensland Police Service [2006] QDC 402 PARTIES: PETER LAWRENCE FARRELL (Appellant) AND QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 106 of 2006 DIVISION: Civil – Applications PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 27 November 2006 DELIVERED AT: Maroochydore HEARING DATE: 10 November 2006 JUDGE: Judge J.M. Robertson ORDER: Appeal dismissed CATCHWORDS: Appeal:- s222 of the Justices Act. Reasonable suspicion under the Police Powers and Responsibilities Act 2000. Cases cited: Reynhoudt (1962) 107 CLR K (1993) 118 ALR 596 Legislation: s. 77 of the Police Powers and Responsibilities Act 2000 COUNSEL: S. Courtney (for the appellant) D. Kinsella (for the respondent) SOLICITORS: Queensland Police Service Solicitor (for the appellant) Director of Public Prosecutions (for the respondent) [1] The appellant was convicted on 17 March 2006 in the Maroochydore Magistrates Court after a short trial of one count of assault police namely: “On 1st October 2003 at Nambour in Magistrates Courts District of Maroochydore (the appellant) assaulted a police officer namely Constable Dan Nikas in the performance of the officers duties.” -- 1 of 4 -- 2 [2] The only issue on appeal is whether or not the prosecution has proved that Constable Nikas was acting in the performance of his duties at the relevant time. The trial before his Honour Magistrate Killeen was very short, and the only witness was Constable Nikas. [3] He gave evidence that on 1st October 2003 he was on duty at 8:55am of at Nambour Police Station when he received information from another police officer to the effect that there had been a theft of a portable CD and other small items that morning from the Railway Station, and the suspect was described as “a male, Caucasian, wearing a t-shirt, dark coloured track pants, large stomach and walking with the assistance of a walking stick”1. He and another officer then proceeded to Maud Street which is about 50 metres from the Police Station. In Maud Street he saw a male crossing the street towards a set of units and this man appeared to have a limp. The police approached this person and spoke to him in the courtyard of Unit 3/15 Maud Street. As this occurred, Constable Nikas noticed the front door of the unit open and he saw another male standing in the doorway who he observed to be “a male, Caucasian, about 183cm in height, large protruding stomach, wearing a grey polo, black track pant, wearing glasses and with a walking stick”2. He formed the view that this person who was the appellant matched the description he had earlier been given. Constable Nikas then spoke to the appellant. He asked him his name and was told “Peter Lawrence Farrell”. The following exchange then took place: “I said, “Do you live here?” and he said, “Yes, it’s my unit”… I then said, “Have you been home all morning?” He said, “No, I just got back from town”. I said, “Whereabouts in town?” He said, “The railway station. I just got home.” I then said, “Mr Farrell, I reasonably believe that you have property within your residence that had been stolen from the railway station earlier this morning.” Mr Farrell replied by saying, “What? You’re a shyster.” I then said, “Mr Farrell, we’re going to conduct an emergent search of your residence. Can you please step out of the doorway to allow us through.” Upon me saying this, Mr Farrell’s became extremely agitated and began ranting at me. I don’t recall exactly what he was saying to me; it wasn’t very clear, but he kept repeating, “You’re a shyster, you’re a shyster.”3 [4] He said that the appellant was pointing at him with the walking stick as he said this so the police officer removed the stick from him and placed it outside his reach. Other police were then called and after they arrived, Constable Nikas again asked the defendant to move out of the doorway and let him through. At this point he stepped forward and the appellant pushed him backwards using both hands. He was then arrested for assault and restrained with the use of handcuffs. [5] The police officer then entered the unit and the items stolen from the Railway Station earlier were located in the kitchen pantry. 1 Transcript of Proceedings, Magistrates Court, 17/03/2006 at Page 4, line 22 – 26. 2 Transcript of Proceedings, Magistrates Court, 17/03/2006 at Page 5, line 20 - 24. 3 Transcript of Proceedings, Magistrates Court, 17/03/2006 at Page 6, line 5 – 28. -- 2 of 4 -- 3 [6] In cross examination, he accepted that the appellant did not match the description of the suspect that he had received before walking to Maud Street, in that the suspect was said to be in his thirties (the appellant was in his fifties)., had brown hair (the appellant’s hair was grey) and the suspect was not said to be wearing glasses. The police officer accepted that he had a much fuller description than that earlier given in evidence. [7] The point taken on the appeal focuses on the lawfulness of the police officer’s actions in entering the unit to conduct the search. The power to conduct such a search is derived from s. 77 of the Police Powers and Responsibilities Act 2000 which is these terms: s. 77 “(1) This section applies if a police officer reasonably suspects – (a) a thing out or about a place … is evidence of the commission of a part 2 offence; and (b) the evidence may be concealed or destroyed unless the place is immediately entered and searched … (3) A police officer may enter …” [8] The heading to the section is “search to prevent loss of evidence”. [9] It is accepted that a police officer who is exceeding his duty is not acting lawfully and not in the performance of his duties: see Reynhoudt (1962) 107 CLR and K (1993) 118 ALR 596. [10] The argument before Mr Killeen and before me is that there was not a sufficient basis for the police officer to reasonably suspect in particular that the evidence may be concealed or destroyed unless the place was immediately entered and searched. There are other powers in the Act enabling police officers to obtain search warrants, and clearly an important object of this power is to prevent the concealment or destruction of evidence. Section 78 requires a police officer who has conducted a search under s. 77 to make a written application to a Magistrate for an order approving the search as soon as reasonably practicable afterwards and there is no issue about this before me. There is no issue that stealing is an indictable offence and therefore a “part 2 offence”. [11] A reasonable suspicion is one based on reason. S. 77(i) requires the police officer to have a reasonable suspicion as to the two matters referred to in sub-sections (a) and (b). Mr Courtney’s submission concentrates on the second of these statutory requirements. He concedes correctly that a police officer’s suspicion can be based not only on what he sees or hears but also on what he has been told. [12] In his submission, what he says are the marked differences between the offender and the suspect’s description; the presence of four offices at the scene; and in particular the absence of any particular information that the offender might conceal or dispose of evidence leads to the conclusion that there was insufficient information or cause for the police to have a reasonable suspicion, and therefore his entry into the unit was not lawful. As to the point about concealment, I can see no -- 3 of 4 -- 4 reason for there to be a requirement that a police officer actually have information that the suspect might conceal or dispose of evidence, provided there are reasonable grounds for suspicion. A police officer is entitled to draw reasonable inferences from information available to him in forming a suspicion. [13] Mr Courtney submits correctly that the Act contains important checks and balances to ensure that police officers, in exercising these intrusive powers, do not go over the line. The very name of the Act supports that proposition. [14] However, I can see no justification for his submission that the s. 77(1) should only be exercised in exceptional circumstances. This is not a requirement in the section itself and I can see no reason to read it in this way. It is simply another power given to police to investigate crime subject to the significant requirement that the police officer have a reasonable basis for suspicion before exercising the power to enter and search premises without a warrant. [15] In his reasons, Mr Killeen referred to the following matters which in his opinion were more than sufficient to found reasonable suspicion in the mind of Constable Nikas as to the s. 77(1)(a) and (b) matters: 1. The extent to which the description of the suspect given to him that morning matched the appellant’s appearance. 2. The statement by the appellant that it was his unit and that he had just arrived home from the railway station where the theft had allegedly taken place. 3. The aggressive response by the appellant to the police officers prior to the search. [16] In my opinion, the response of the appellant was not a factor that could be considered, given that on the evidence of the police officer, the appellant only became aggressive after being advised that Constable Nikas that he had a reasonable belief that the stolen property was in his unit. [17] However, I agree with Mr Kinsella that in assessing the basis for the officer’s suspicion, it is proper for the court to also take into account the very short time that had elapsed between the description being given and the appellant being seen, and the nature of the stolen items themselves which were all small and easily capable of concealment. [18] I also agree with Mr Kinsella that in forming the relevant suspicion, the police officer need only suspect that evidence may be concealed or destroyed, that is a mere possibility, which is not a particularly high threshold. [19] In my opinion the factors I have enumerated were more than enough in the circumstances of this case to properly found a reasonable suspicion in the mind of the police officer, and therefore his subsequent entering of the unit was lawful and that he was acting in the performance of his duty when he was assaulted by the appellant. [20] The appeal therefore fails and is dismissed. -- 4 of 4 --