Couchy v Birchley [2005] QDC 334

DISTRICT COURT OF QUEENSLAND CITATION: Couchy v Birchley [2005] QDC 334 PARTIES: MELISSA JANE COUCHY Appellant v IAN PATRICK BIRCHLEY Respondent FILE NO/S: Appeal D4692 of 2004; MAG24557/04, 145, 588/04(9) DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 8 November 2005 DELIVERED AT: Brisbane HEARING DATE: 10 October 2005 JUDGE: McGill DCJ ORDER: Appeal allowed, convictions quashed, verdicts of acquittal entered CATCHWORDS: CRIMINAL LAW – Identification – “dock identification” – whether circumstantial evidence of identification – summary trial – conviction unsafe POLICE OFFENCES – Summary Offences – public nuisance offence – charge not tried as particularised – whether finding of “abusive language” open – whether interference with enjoyment of public place POLICE OFFENCES – Obstructing Police – necessity for person in custody to have been lawfully arrested Vagrants Gaming and Other Offences Act 1931 s.7AA(2)(b), (3)(a) Police Powers and Responsibilities Act 2000 s.198 Alexander v R (1980) 145 CLR 395 - applied Bradbury v Staines, ex parte Staines [1970] Qd R 76 – applied Coleman v Kinbacher [2003] QCA 575- considered Coleman v Power (2004) 78 ALJR 1166 – applied Davies and Cody v R (1937) 57 CLR 170 - applied Del Vecchio v Couchy [2002] QCA 9 – followed M v R (1994) 181 CLR 487 – applied Phelps v Gothachalkenin [1996] 1 Qd R 503 - applied -- 1 of 19 -- R v Conway [2005] QCA 194 – considered R v Demeter [1995] 2 Qd R 626 – applied COUNSEL: E. Wilson for the appellant M. Hungerford-Symes for the respondent SOLICITORS: Boe Lawyers for the appellant Director of Public Prosecutions for the respondent [1] On 1 December 2004 the appellant was convicted after a summary trial of two offences, committing a public nuisance offence and obstructing a police officer in the performance of the officer’s duties, both alleged to have been committed on 30 August 2004. A penalty was imposed. This appeal is brought from that conviction pursuant to section 222 of the Justices Act 1886. [2] Although there were a number of grounds listed in the Notice of Appeal, and a lengthy outline of submissions, and a supplementary outline, on behalf of the appellant, on the hearing of the appeal four particular matters were raised and argued by counsel for the appellant, and it is sufficient to deal with those four matters. In relation to the first charge, the appellant argued that: (a) There was insufficient evidence of identification of the appellant as the person concerned to sustain a conviction. (b) The evidence before the magistrate did not establish that the appellant behaved in an offensive way, which is one of the elements of the public nuisance offence. (c) The evidence before the magistrate did not establish that the appellant’s behaviour had interfered, or was likely to interfere, with the peaceful passage through or enjoyment of a public place by a member of the public, which is the other element of the offence. [3] In relation to the second charge, it was submitted that the offence had not been committed because the appellant was not at the time lawfully in police custody, so that the police officer concerned was not acting in the performance of his duties. Evidence of identification [4] The prosecution case at the trial as particularised (pp2-3) was that the appellant was one of three people who were in the Myer Centre at a time when shops were closing. A security guard noticed them, and that one of them appeared to be smoking a cigarette, which was not permitted in the Myer Centre. The security guard asked him to put out the cigarette and he refused. The security guard then asked him to leave the premises. It was alleged that in response the appellant had verbally abused the security guard, in particular by saying to him, “You can’t kick me out of this place because you’re a fucking racist.” It was alleged that as a result of this behaviour some people who had been standing nearby moved back away from the group of three people, who then moved towards and entered a lift, and left the vicinity of the security guard. He telephoned the police, and subsequently a police -- 2 of 19 -- officer came upon a group of three people who met the description given to him. He asked them to come to the Police Beat premises in Adelaide Street while the matter was investigated, and initially the group did come with him, but then became agitated and uncooperative, and they were arrested and taken to the Police Beat premises. At those premises, while he was attempting to move the appellant into an interview room, the appellant threw a punch at him, which missed, and then struggled with him and other police, resisting being placed in the room. [5] The security guard gave evidence that he was engaged in locking up part of Level E at around 6.10 pm on 30 August 2004: p4. He was walking towards the Level E ramp when he saw three aboriginal people, two female and one male, walking towards him with a bicycle. He noticed the appearance of the male, and that he was holding something in his left hand. As they passed him, he could smell a cigarette, so he turned and asked him to put the cigarette out. The male refused and he said to him, “If you’re not going to put the cigarette out, please leave the building.” He said that the man refused, and while they were waiting for the lift “the short one started at me” saying various things including, “You’re nothing but a racist fucking piece of shit.” [6] The police prosecutor then asked who he was referring to as the short one, and the witness replied, “The defendant inside in the court room.” Objection was taken which was overruled. He said that they continued to sling abuse towards him because he tried to remove them from the centre. He noticed to his right-hand side between 10 and 15 people who were waiting to get the lift. When the lift came, the three aborigines got into the lift (presumably taking the bicycle with them) and moved away from the witness. At that time the only way out of Level E was by the lifts: p13. He was not cross-examined about his identification of the accused, and it was not put to him that it was not the accused who had been the person who had made the statement to him. In re-examination he said that the aborigines that he was having the altercation with were standing probably about five metres away from the lift, and he was standing five to 10 metres away: p14. [7] There was a witness called, a shopkeeper at a food shop nearby, who gave evidence that he saw an argument between the security guard and an aboriginal couple whom he recognised as a couple he had seen in the past on a number of occasions at some shops at Inala where he also used to operate a shop: p16. He gave some details to the appearance of the female of this couple, but no other evidence relevant to identification. As a means of supporting the identification of the appellant, this evidence went nowhere, and he did not claim to have heard the relevant words used. [8] Police Constable Wilson gave evidence that at about 6.10 pm he was in Adelaide Street and he saw three persons, a male and two females including the defendant, walking along Albert Street into Adelaide Street: p20. He said they were engaged in loud swearing and their movements were exaggerated, and they looked to be under the influence of alcohol. They calmed down and continued up Adelaide Street. He did not make any mention of their having a bicycle1 . Subsequently, he 1 One of the curious features of the evidence was that, after the initial mention by the security guard, so far as I noticed there was no other reference made to the bicycle. Perhaps it was a transcript error. -- 3 of 19 -- heard information over the police radio in relation to what he described as “some persons of similar description”. He said he then walked up Adelaide Street with other police and caught up with the three he had seen earlier, at George Street. Under cross-examination he said he had had no prior knowledge of the appellant, or indeed the other two persons she was with that day. There was no other prosecution evidence relevant to the question of identification. Authorities on identification evidence [9] There have been a number of authorities on “dock identification”. The leading case is Davies and Cody v R (1937) 57 CLR 170. That case did not involve a dock identification, but after the appellants were arrested, some nine months after the event, each was shown singly to a witness who was asked whether he was one of the men who committed the offence: p178. It was noted by the High Court that up until that time, notwithstanding statements which had been made in the English Court of Criminal Appeal, the Supreme Court of Victoria had not regarded such a method of identification as one which would lead to setting aside a verdict of guilty founded upon such evidence, or indeed requiring any special warning in the charge to the jury. At p182 the court in a joint judgment said: “If a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question … If a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial.” [10] In that case there was the complication that there was other evidence which included other identification witnesses where the same difficulty had arisen, and there had been no clear warning of the dangers of such identification in the charge to the jury. The conviction was set aside and new trials were ordered. Nevertheless, there was no suggestion in the reasons for judgment that the evidence was inadmissible. [11] In Alexander v R (1980) 145 CLR 395 the court was concerned with identification on the basis of photographs shown to a witness. At p399 Gibbs CJ said2 : “In theory the manner in which the accused was identified out of court goes to the weight rather than to the admissibility of the evidence.” 2 This passage appears in a discussion of out of court identification using photographs. -- 4 of 19 -- [12] His Honour went on to refer to a variety of authorities, including some where it had been held that it was unsafe to act on evidence on identification given in certain circumstances. His Honour said at p400: “As a matter of legal principle, it seems to me impossible to say that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade was held.” [13] Accordingly, at p402, His Honour said that as a matter of law evidence of identification made out of court by the use of photographs produced by the police is admissible, but noted that a trial judge had a discretion to exclude any evidence if the strict rules of admissibility operated unfairly against the accused, and noted that it would be appropriate to exercise that discretion if the evidence had little weight but was likely to be greatly prejudicial to the accused. Stephen J at p417 said that when photo identification is used in the detection process: “The witness’s evidence of identification may be admitted in evidence unless an application of the familiar exclusory discretion, dependent upon the weighing of prejudicial effect against probative value, should require its exclusion. This will be so whether the witness’s proposed evidence is confined to ‘in court’ identification, includes evidence of recognition at an identification parade, or extends to evidence of the photo identification itself.” [14] Mason J at p426-7 said: “Traditionally it has been accepted that a witness identifies the accused at the trial as the person whom he observed at the scene of, or in connection with, the crime. This ‘in court’ identification, sometimes described as primary evidence, is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspired to compel the witness to identify the accused in the dock.” [15] Murphy J held that all of the evidence in issue was admissible, although he would have excluded some of it as a matter of discretion. Aicken J agreed with Mason J: p437. [16] In Phelps v Gothachalkenin [1996] 1 Qd R 503, it was submitted that an identification based on the complainant being shown a single suspect and identifying that suspect as the offender was insufficient to sustain a conviction. In that case, the complainant said that he was assaulted, and soon after spoke to a security guard, to whom he gave a description of the assailant. The security guard thought he recognised the person, and went to fetch him while the complainant went and spoke to the police. Soon after, the complainant went with the police officer to where the security guard was standing with the appellant, and promptly identified him as the assailant. In the presence of the complainant the appellant denied that he had -- 5 of 19 -- assaulted the complainant, but said that “he’d seen him”. The court held that whatever the position may be with respect to identifications arranged by the police, there was no general rule that an identification of the kind that occurred in that case must be excluded from evidence, nor did it seem possible rationally to say that the identification had no probative value. Indeed, the court went on to hold the conviction was not unsafe, noting that the identification was supported by the fact that the description given to the security matched that of the appellant, the admission by the appellant that he had seen the complainant, and the fact that both the appellant and the offender were very drunk, although this last point was said to have only slight weight. In circumstances where the Crown case was uncontradicted, the conviction was not set aside as unsafe. [17] There was a helpful discussion of the approach to a dock identification in the judgment of Pincus JA, with whom Mackenzie J agreed, in R v Demeter [1995] 2 Qd R 626 at 632-3. It is too long to quote, but I respectfully agree with it. That case, and R v Negus [1997] QCA 191, established that the mere fact that there was a dock identification did not mean that a conviction must be set aside, at least in circumstances where there was an appropriate warning given to the jury, and where there was other evidence to support the identification of the accused. [18] In my opinion, in the light of the authorities, it is clear that a dock identification is not inadmissible, although it may well be appropriate to prevent it from occurring under the discretion to exclude otherwise admissible evidence on the ground that its prejudicial value outweighs its probative value. It is unnecessary to consider whether in this case the magistrate erred in failing to exercise this discretion in favour of the appellant. [19] In the present case in my opinion the dock identification was admissible, but in the circumstances not of much weight. In a situation where the trial was by a magistrate rather than by a jury, there ought to be less concern about the risk of inappropriate weight being given to the dock identification. The real issues are whether inappropriate use was subsequently made of it, and whether the evidence as a whole was sufficient to sustain a conviction, that is to say, whether on the basis of the evidence as a whole the conviction was unsafe. Circumstantial evidence to support the identification [20] The respondent relied on the evidence of Constable Wilson to sustain the conviction. The problem with this evidence in my opinion was that two things were not elicited from Constable Wilson, or in other evidence, and one thing which he did say he ought not to have said. In the course of his evidence, Constable Wilson said that after he had seen the three people in Adelaide Street, he heard information over the police radio in relation to “some persons of similar description”: p20. However, there was no evidence of the descriptions that were given over the radio. Any such descriptions would presumably have come from the security guard, but there was no evidence from him or the police of any descriptions that he gave police of the three individuals concerned, let alone any description specifically of the appellant. He -- 6 of 19 -- was cross-examined about what he told police, but that did not elicit any description of the offender or her companions. [21] Presumably some description was given at some point. It may have been limited to “three drunken aborigines”, possibly adding “one male and two females”. If that were the case, the significance of the description was not great. On the other hand, if he had been able to give some details of the appearance of the individuals concerned3 , the fact that the description given by him at that time matched the description of the appellant and her companions when seen by Constable Wilson would in my opinion have been an important part of a circumstantial case of identification, particularly bearing in mind the short time that had elapsed. [22] It was suggested at one point during submissions that evidence of the description given to the police would not have been admissible, being hearsay, and the same would have applied to the description given to Constable Wilson over the police radio. However, the content of a description given by a witness is original evidence of the fact that that description was given, and in circumstances where the terms of the description given by a witness are admissible as part of a circumstantial case, as would have been the case here4 , the terms in which that description was given become admissible evidence. That such evidence was admissible is shown by the reliance on such evidence in Phelps (supra) and Negus (supra). In the present case, the prosecution should have led evidence of the description of the three individuals concerned given to the police by the security guard, and evidence of the relaying of that description, or as much of it as was relayed, to Constable Wilson. [23] Had that evidence been before the court, it would have been in order for him to have added that he had formed the opinion that the three individuals he had just seen met that description, particularly in circumstances where his state of mind might have been relevant in relation to the second count. However, in circumstances where that evidence was not before the court, the fact that in his opinion those individuals met that description ought not to have been received, because it was evidence of a conclusion by him, in circumstances where the court did not have available evidence of the factual basis for the conclusion. In those circumstances, it was not possible for the magistrate to assess the significance of the proposition that the three individuals he saw were similar to the description that presumably originated from the security guard, and there was a risk that as a result the magistrate, possibly even unconsciously, may have attributed too much significance to such similarities as there were. [24] The only similarities which were proved to have occurred were that in each case it was a party of three people, that one was male and two female, that they were apparently aborigines, that they showed signs of being affected by alcohol, and that the three seen by the security guard were seen apparently in the process of leaving the Myer Centre, whereas the three seen by Constable Wilson were seen a short distance away from the Myer Centre, and apparently moving away from it. That is 3 That should not have been difficult, since on his evidence he had them in front of him when he was speaking on the phone to the police. 4 To show that the people seen by Constable Wilson did match the description given by the security guard. -- 7 of 19 -- some circumstantial evidence, but if it goes no further than that, it is not of great weight, and it does not qualify as a strong circumstantial case, independent of the dock identification. Such force as this evidence has is weakened by the absence of any suggestion that the group had a bicycle with them. Conversely, if the group seen by Constable Wilson had had a bicycle, that would have strengthened the circumstantial identification. [25] The other omission was that there was no evidence from Constable Wilson that the appellant was the shorter of the two women in the group. Apart from the dock identification, the only evidence from the security guard was that the offender was the shorter of the women. Even if this circumstantial evidence provides some support for the proposition that it was the same group of three, it does not identify the appellant rather than the other woman in the group. There was some cross- examination of Constable Wilson and the shop owner to suggest that the woman who was part of the couple that the shop owner said were arguing with the security guard was not the appellant but the other woman in the group seen by Constable Wilson, or at least had an appearance consistent with that other woman. Analysis [26] Although the issue of identification was raised in submissions on behalf of the appellant before the magistrate, no reference was made by the magistrate in his reasons specifically to the question of identification. There was certainly nothing to indicate that the evidence of the dock identification was treated by him with appropriate circumspection. In circumstances where the identification of the accused as the offender had been put in issue by the plea of not guilty, and the issue had been raised in submissions, and where there was overall not a strong case of identification, the absence of reasons indicating that the dock identification was not given excessive weight, or indicating that there was no significance attributed to the inadmissible statement of similarity between the description on the radio and the appearance of the party seen by Constable Wilson, must give rise to some concern about the safety of the conviction. [27] Both of the parties referred to the decision of the Court of Appeal in Bailey v Costin [1993] QCA 404 as being one authority relevant to the approach to findings of fact by a magistrate on an appeal under section 222. In my opinion it is not relevant. That case involved an appeal under section 673 of the Criminal Code, since repealed, which was not an appeal by way of rehearing5 . In my opinion, that case does not state the appropriate test. The appeal under section 222 is an appeal by way of rehearing: section 223. Where findings of fact involve or are likely to involve questions of the assessment of credibility of witnesses, findings must stand unless it can be shown that the magistrate has failed to use or has palpably misused the advantage of having seen the witnesses, or has accepted evidence which was inconsistent with facts incontrovertibly established or which is glaringly improbable6 . It is a matter for the appellant to show the magistrate was wrong, but 5 R v Free [1983] 2 Qd R 183 at 191. This distinction between such an appeal and an appeal by way of rehearing was discussed in Aldrich v Ross [2001] 2 Qd R 235 at 257. 6 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. Note also the passage quoted at p481 from Coghlan v Cumberland [1881] 1 Ch 704 at pp704-5. -- 8 of 19 -- in my opinion in circumstances where a verdict of the jury would be set aside as unsafe or unsatisfactory, applying the approach in M v R (1994) 181 CLR 487, a finding of guilt by a magistrate should also be set aside. [28] In M v R at p494 the majority said: “If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence … The ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” [29] In the present case, in my opinion, bearing in mind all of the matters referred to earlier, it was not open to the magistrate to be satisfied beyond reasonable doubt by the evidence identifying the accused as the offender in relation to the public nuisance offence with which she was charged. In those circumstances, the appeal must be allowed in relation to that count and the conviction quashed. Public nuisance offence: offensive behaviour [30] The conclusion I have just reached is sufficient to determine the appeal in relation to Count 1. However, in case another view may be taken elsewhere, and because I have heard full argument, I will deal also with the two matters argued as to whether the person who behaved in the way described by the security guard committed a public nuisance offence. The relevant provision is section 7AA of the Vagrants, Gaming and Other Offences Act 1931 (“the 1931 Act”). That section relevantly provided as follows 7 : (1) A person must not commit a public nuisance offence. Maximum penalty – 10 penalty units or 6 months imprisonment. (2) A person commits a public nuisance offence if – (a) the person behaves in – (i) a disorderly way; or (ii) an offensive way; or (iii) a threatening way; or (iv) a violent way; and (b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public. 7 It has since been repealed, but s.6 of the Summary Offences Act 2005 is in the same terms -- 9 of 19 -- (3) Without limiting subsection (2) – (a) a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language; and (b) a person behaves in a threatening way if the person uses threatening language. (4) It is not necessary for a person to make a complaint about the behaviour of another person before a police officer may start a proceeding against the person for a public nuisance offence. (5) Also, in a proceeding for a public nuisance offence, more than one matter mentioned in subsection (2)(a) may be relied on to prove a single public nuisance offence. [31] In view of the way in which the offence was particularised, reliance was placed specifically on the use of particular language by the person concerned, which would bring the matter within subsection (3)(a). Although the evidence given by the security guard was not quite that alleged in the particulars, it was similar: “You’re nothing but a racist fucking piece of shit.” In my opinion it was close enough to the particulars given to satisfy them. The question is whether the use of that language was an offence under the section. Section 7AA(3)(a) [32] It was submitted on behalf of the appellant that such language was not sufficiently serious to warrant criminal sanction, in accordance with contemporary community standards. Reference was made to statements by the High Court in Coleman v Power (2004) 78 ALJR 1166. In that case, the appellant had been charged with and convicted of the offence of using insulting words in a public place. The insulting words alleged to have been used were a statement that a particular police constable was “a corrupt police officer”. That case involved the issues of what would amount to “insulting words” for the purposes of the offence then contained in section 7(1) of the 1931 Act, and whether the provision was contrary to the freedom of political communication conferred by implication by the Commonwealth Constitution. Three members of the court concluded that the appellant’s conduct did not come within the prohibition on insulting words, as they would interpret that prohibition; four members of the court were of the contrary opinion, but one of those four was the only member of the court who thought that the sanction so construed did fall foul of the implied constitutional guarantee, so that it was invalid. On that basis, by a majority, the appeal was allowed. [33] Neither of those issues which so divided the High Court in Coleman v Power arise in the present case. Furthermore, that case engaged questions of permissible limits of freedom of speech, and where the legislature was entitled to draw the line, and how a legislative attempt to draw a line should be interpreted. In my opinion it is only in a very general sense that what was said by the court there, essentially in relation to the interpretation of a prohibition on insulting words, and in a context where the appellant was ostensibly carrying on a public political campaign against particular police officers, is relevant to the circumstances of this case. -- 10 of 19 -- [34] There were some things said in Coleman v Power (supra) which are of some relevance in the present case, but not many. The Chief Justice on p1170 said: “Concepts of what is disorderly, or indecent, or offensive vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs.” [35] Gummow and Hayne JJ at p1199 said that because the section created a criminal offence which restricted freedom of speech, this was not to be curtailed except by clear words. At p1200 their Honours noted that enforcement of the proscription of profane, indecent or obscene language ensures that the minimum standard of what might be called decorum or seemly discourse in public places is maintained. A distinction was drawn by their Honours between that prohibition and the requirement that threatening, abusive or insulting words be used to a person in order to constitute a criminal offence, as indicating that the offence was not directed simply to regulating the way in which people speak in public. But in the present case, there is no requirement that the abusive language be used to any person. [36] A context which is closer to that of the present applied in Del Vecchio v Couchy [2002] QCA 9. The applicant had been convicted of using insulting words in a public place contrary to the same provision in the 1931 Act because in an intoxicated state she said to the complainant police officer “you fucking cunt” or words to similar effect. In the Court of Appeal the Chief Justice, with whose judgment the other members of the court agreed, said that even allowing for modern licence, the community would generally still regard the use of such an expression to a female police officer going about her duty, albeit by a drunken person in the early morning, as insulting. His Honour also said that the test of whether the words were insulting was an objective test to be applied in accordance with contemporary community expectations. Special leave to appeal to the High Court was refused on 3 December 20048 partly because the issue had ceased to be of such importance because of the amendment to the Act, and partly because there was no sufficient prospect of success to warrant the grant of special leave. Some of the comments in the course of argument by the members of the High Court suggested that what was relevant was the subjective effect of the words on the recipient; but I am of course bound to apply the test stated by the Court of Appeal, that is, an objective test. [37] In the context of the present legislation, which focuses on the effect on a member 9 of the public in a public place, in my opinion there is no reason to doubt that the correct approach is an objective test. For the purpose of this element of the offence, it is not a question of whether the individual who was addressed by the words felt abused, or for that matter was offended or regarded them as obscene or indecent. The question is whether objectively in the prevailing circumstances the words met that description. [38] In context, in my opinion, the whole of the section, and certainly the prohibition of language which falls within subsection (3)(a), are concerned with regulating public 8 [2004] HCA Trans 520. 9 Or presumably members: Acts Interpretation Act 1943 s.32C -- 11 of 19 -- behaviour. This is shown clearly enough by the second reading speech10 of the minister who introduced the legislation by which section 7AA was inserted in the 1931 Act. He described the new part which included this section as “dealing with the quality of community use of public places”, as shown by the new title to part 2A. The minister spoke critically of “persons who choose to disrupt a family picnic in a park, groups of people who have nothing better to do than intimidate people at railway stations or persons who take delight in intimidating women or children at a shopping centre …”11 . He added that parliament intended the courts to interpret the new part 2A: “In accord with current community standards at the time a charge is heard and determined … In determining what is a public nuisance offence in terms of the past, a court is not limited by but should take into account the examples contained in the explanatory notes to this bill.12 The amendment does not target a private conversation [between two persons drinking in a public bar of a hotel, but] should the same language be used in the restaurant of a hotel where children might be present, or a shopping mall, its use must be considered in a different context.” [39] The minister went on13 : “The amendment does not, in any sense, relax current laws so that a person may feel free to abuse their right to use a public place and in so doing, cause an unacceptable annoyance or interference to others who also wish to use a public place. I wish to make it clear that the amendment does [not] give any person the right to use offensive language in front of another in inappropriate circumstances. To be absolutely clear, the new provisions will also apply to persons who choose to insult or abuse police officers who are acting in the lawful execution of their duty. No-one should forget that our police officers are members of our community, the same as you and I … They should not have to accept offensive language directed to them from persons who choose to break the laws of Queensland.” [40] In my opinion the words of section 7AA, read in their natural meaning and in context, and taking into account the authorities and extrinsic material, indicate that what was intended was an objective test to determine whether language fell within any of the terms specified in subsection (3)(a). Further, the focus of the prohibition is on the enjoyment of public places by the public in general, and the legislation is concerned with the effect or potential effect of, relevantly, language of the kind prohibited on the public in general in that place. In those circumstances, the subjective attitude to the language of the person using the language, and, ordinarily, 10 Queensland Hansard 28 October 2003, vol 302, p4361. 11 Ibid p4363. 12 One of these was: “A person using obscene language in a mall or a street may constitute offensive language.” – 2003 Explanatory Notes Vol 3 p 2657. 13 Ibid p4364. In his speech in reply, 25 November 2003, p5097, he added: “This is all about raising the standards of social behaviour in the State of Queensland.” -- 12 of 19 -- the person to whom the language is used, is in my opinion irrelevant. There could be an exception in the latter case where the person to whom the language was used was the only other person present in the public place, and therefore the only other person whose passage through or enjoyment of the public place might have been adversely affected. It may be that different considerations arise in that situation. It is unnecessary to consider that in this case, because there was evidence that there were a number of other people present, so that the court was concerned with the attitude of the public generally. [41] It follows from this that in my opinion the attitude to the words used of the offender, or for that matter, the security guard to whom they were used, were not relevant considerations. It was submitted on behalf of the appellant that she was indigenous, and gave indications of impoverishment, alcoholism and undersophistication. In my opinion they were not relevant considerations in determining whether the language that was used fell within the statutory prohibition. There is nothing to indicate that in a particular situation language which would be an offence if some people used it would not be an offence if others used it. Clearly the legislative intention was to require all persons to adhere to community standards. Similarly, in circumstances where there were other people present and presumably within earshot, whether there security guard was distressed by or indifferent to the language was equally in my opinion irrelevant. That follows from the example given by the minister, when he contrasted a situation where two people were using obscene language in a private conversation and a situation where they were doing so where their conversation could be overheard by members of the public in a public place. In the latter situation, both parties to the conversation might be entirely content with the language being used, but if it was offensive, obscene, indecent or abusive, and if it interfered or was likely to interfere with the enjoyment of a public place by members of the public who were within earshot, it is clear that it was the intention of the legislature that an offence be committed. [42] The application of current community standards in the relevant context and circumstances is a matter for the magistrate, to determine as question of fact. It was for the magistrate to express the views and standards of the community in making this determination14 . I expect that opinion evidence on this subject would be admissible under ordinary principles, by a person who was appropriately qualified as an expert on this subject. But the opinion of someone who is not so qualified as an expert is in my opinion irrelevant and inadmissible. The security guard, and a number of the police witnesses, were cross-examined as to the use of certain expressions, and as to their personal reactions to their use, and even in some cases as to the extent to which they might use such expressions themselves. This cross-examination should not have been allowed15 . [43] In any case, whether or not people use particular expressions in private, or possibly even when they are alone, could hardly be relevant to the question of what is acceptable or unacceptable behaviour in a public place. It was said in 1969 that 14 Bradbury v Staines, ex parte Staines [1970] Qd R 76 at 91 per Barwick CJ 15 None of these people were properly qualified as experts, and accordingly their views on the subject were irrelevant and inadmissible. -- 13 of 19 -- language of this kind was not quite so disreputable as it was 50 years ago16 , and no doubt that trend has continued, but, for what it is worth, my observation of human behaviour in such public places as I frequent, which on occasions includes the Myer Centre, is that ordinary people do not in practice use such language in those public places. I suspect the changing attitudes are reflecting more in changes in the use of such language in private, but in a section concerned with the standard of behaviour required of persons in public places, it is community standards as to the use of such language in a public place which are relevant. Indeed, it may be appropriate to consider the particular character of the public place in question. [44] The first question is whether the words proved by the prosecution were abusive, or for that matter offensive, obscene or indecent, according to ordinary current community standards. The finding of the magistrate here was a little curious. At p6 the magistrate said the use of the words themselves was not a public nuisance offence. I find that somewhat puzzling. Although everything depends on the context, it is difficult to believe that in this case the offender used the words other than as an exercise in abusing the security guard, and it seems to me that in their ordinary and natural meaning the words clearly amounted to abusive language, in accordance with current community standards. Abusive language, in this context, means in my opinion language which is derogatory in an aggressive or hostile way. Indeed, I consider that in accordance with current community standards, they also amounted to offensive17 and obscene18 language. [45] What the magistrate went on to do was consider a case which was not the case particularised, a case which depended upon the behaviour of persons other than the offender. It would have been possible, I suppose, to have brought a case against all three individuals in the group, on the basis of all of the actions of the group, under section 7 or section 8 of the Code, relying on the totality of the actions of the group as constituting a public nuisance offence19 . That was the case which the magistrate went on to consider, and which he found to have been proved. The difficulty with that approach, however, is that that was not the case particularised, and the appellant was entitled to have the matter considered by reference to the case particularised. [46] There was not, I think, clear evidence that the words in question were said in a voice loud enough so that they would have been heard, or were likely to have been heard, by the other members of the public in the vicinity, although given the evidence about how far away the security guard was from the offender, and the evidence of the other witness, that might have been able to be inferred. It would have been better if evidence had been led that the statement in question was made in a loud or clearly audible voice. 16 Attorney-General v Twelfth Night Theatre [1969] Qd R 319 at 327. 17 Bradbury v Staines, ex parte Staines [1970] Qd R 76 at 87 per Douglas J 18 There is considerable authority for this: Brazil v Bielefeld, ex parte Bielefeld [1964] QWN 5; McAneny v Kearney, ex parte Kearney [1966] Qd R 306; Carpenter v Halstead, ex parte Halstead [1973] Qd R 35. The test is whether the words were offensive to current standards of decency: Crowe v Graham (1968) 41 ALJR 402 at 409. “Indecent” is a milder term: Carpenter v Halstead (supra) at 45. 19 Note section 7AA(5): more than one matter may be relied on to prove a single offence. -- 14 of 19 -- [47] In my opinion the magistrate was quite entitled to find that the words referred to by the security guard amounted to abusive language and therefore that the offender behaved in an offensive way. Indeed, I would have expected such a finding on the evidence. I have no doubt that the legislative intention was in such circumstances to criminalise language of that nature, subject to satisfaction of the test in subsection (2)(b). Section 7AA(2)(b) [48] As to whether that test was satisfied in the present case, it was legitimate for the magistrate to take into account evidence as to the apparent effect on members of the public present 20 , and it was also legitimate, in my opinion, for the magistrate to have regard to the ordinary effect which one would expect such language to have on members of the public in such a place. As to the former evidence, the difficulty with that evidence, which I think was appreciated by the magistrate, was that it was not shown that any particular reaction on the part of the people nearby was related specifically to the use by the offender of the words in question. The magistrate related that behaviour rather to the behaviour to the group as a whole in moving towards the lift with apparent intent to occupy it ahead of other people who had been waiting for it, who then moved back out of the way. [49] If there is evidence of some particular reaction on the part of members of the public to the particular conduct relied on as constituting the offence, that is evidence relevant to whether the person’s conduct interfered or was likely to interfere with peaceful passage through or enjoyment of a public place by members of the public. It is necessary to relate the apparent response of the members of the public to the behaviour, but a temporal connection may be sufficient to establish that. I do not think that it is necessary to call members of the public who were present in order to establish the necessary causal link. It could be a matter of inference in an appropriate case. [50] In the absence of evidence of an actual or verbal response, however, in my opinion it would be open to the tribunal of fact to be satisfied as a matter of inference that particular behaviour was likely to interfere with peaceful passage through or enjoyment of a public place by a member of the public. I do not think that the use of the term “enjoyment” was intended to confine the application of the section to people who are in the public place only for the purpose of pleasure, as distinct from people who are there in the course of some business or occupation, or for some other specific purpose 21 . The people in question here were apparently people who were going home from work, but if the behaviour of a person in their vicinity was likely to distress or upset them, that would in my opinion have amounted to interference with the enjoyment of a public place by them as members of the public. The point of the legislation is clearly indicated in the title to that part of the Act, that is, the quality of community use of public places, and the public may make all sorts of use 20 Evidence of how other people could be seen to react was admissible, although not speculation as to their state of mind. That their observed reaction was caused by the use of the words would be a matter of inference. 21 This emerges from the reference in the second reading speech to the protection of the section extending to police officers. -- 15 of 19 -- of public places, including, of course, peaceful passage through them. There was a clear legislative intention that people in such places should not be upset or distressed by disorderly, offensive, threatening or violent behaviour. [51] Whether the use of any particular language interferes or is likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public depends on the presence of people within earshot in the public place22 . It will be appropriate to consider the number and character of the people within the range of operation of the language. If there was no-one in range, the offence would not be committed, nor if the only person or people within range are in fact indifferent to the language23 . It is clear from the second reading speech that the legislative intent was that, if the relevant people in the public place were or included police officers, the section would apply in the ordinary way to language directed to them. If there was only one person within earshot in the public place, the reaction of that person becomes of greater importance, and it may be more difficult to deal with the matter by way of inference if that person has not given evidence. [52] In my opinion in the present case, in circumstances where there was evidence that there was a number of ordinary members of the public in the general vicinity, provided that the magistrate was able to find on the basis of the evidence that the words in question were said in a loud enough voice to be audible to those members of the public, it would have been open to the magistrate to infer from the nature of the words used that that behaviour was likely to interfere with the peaceful passage through or enjoyment of the public place by the members of the public present. Offence of obstruction [53] It was submitted on behalf of the appellant that there was no power to arrest her at the time, so that thereafter she was not lawfully in detention. In those circumstances, steps which were taken by the police, on the assumption that she was lawfully detained, were taken without any lawful excuse, so that the police officers in taking them were not acting in the execution of their duty. Accordingly, any action on her part could not have amounted to obstructing them in the execution of their duty. [54] The legislative provision relied on by the respondent in relation to the arrest of the appellant was section 198 of the Police Powers and Responsibilities Act 2000 (“the 2000 Act”). That section provides relevantly as follows: 22 The section does not seem to make it an offence to behave in a public place in a way which does not in fact adversely affect anyone in the public place, but would interfere with the enjoyment of adjoining private places, such as the behaviour of a collection of louts in an otherwise empty street which disturbs people in adjoining houses or units. 23 This does not mean that all such people have to be called as witnesses, or that if they are not called, the appropriate inference is that they were not adversely affected. Note the terms of subsection (4). In the ordinary case where there is evidence that there were people around, it would be open to a magistrate to draw an inference that this section had been satisfied simply from the evidence that there were people within earshot, unless there was some particular reason to think that they were not adversely affected. -- 16 of 19 -- “(1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for one or more of the following reasons – (a) to prevent the continuation or repetition of an offence or the commission of another offence; (b) to make inquiries to establish the person’s identity; (c) to ensure the person’s appearance before a court; (d) to obtain or preserve evidence relating to the offence; (e) to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence; (f) to prevent the fabrication of evidence; (g) to preserve the safety or welfare of any person, including the person arrested … (2) Also, it is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an indictable offence, for questioning the person about the offence, or investigating the offence, under chapter 7.” [55] The magistrate found that the three people were requested to go back to the Police Beat as the police officers were quite properly investigating a complaint that was given to them by the security guard: p8. That finding was consistent with the evidence. The officer who actually made the arrest was Constable Birchley. He said that along the way the three of them began to protest or remonstrate about having to go the Police Beat, and so he told them that they were under arrest for a public nuisance offence earlier in the Myer Centre: p39. In cross-examination Constable Birchley confirmed that the matters referred to in evidence-in-chief were all the issues that he took into account in making the decision to arrest them on that street, that is to say, that they were arrested for the public nuisance offence in the Myer Centre on the basis of the information provided by the security guard: p45. The arrest was in response to their no longer voluntarily accompanying police to the station for the purpose of their inquiry. [56] That approach would have been appropriate if the police officer had reasonably suspected the appellant and her companions to have committed an indictable offence, pursuant to subsection 198(2) of the 2000 Act. But the offence they were suspected of having committed was not an indictable offence, and accordingly there was no power under that subsection to arrest without a warrant. Nevertheless, it was submitted on behalf of the respondent that a power to arrest arose under subsection (1), on the basis that the police officer reasonably suspected that the appellant had committed that offence, because it was reasonably necessary to prevent the continuation or repetition of the offence, or for one of the other reasons specified in subsection (1). [57] The difficulty with this argument is that there was no evidence from the arresting officer to the effect that he was purporting to exercise the power under -- 17 of 19 -- subsection (1), that is to say, of the existence of any purpose behind the arrest of preventing the continuation or repetition of the offence, or any of the other reasons set out in subsection (1). In these circumstances, it has not been shown that the arrest was lawful under subsection (1). No other basis on which the arrest could have been lawful was relied on on behalf of the respondent. It follows in my opinion that they were not lawfully arrested. [58] The wording of the introductory words of section 198(1) is curious. It begins by requiring a reasonable suspicion on the part of the police officer, which is concerned with the state of mind that the police officer and the existence of reasonable grounds for that state of mind; obviously this is something which can occur even if ultimately the person arrested is not convicted of the offence in question, or for that matter any offence: Veivers v Roberts, ex parte Veivers [1980] Qd R 226. It then goes on to require that it be reasonably necessary to arrest the adult for one or more of a list of reasons, in words which do not clearly indicate whether what is required is a reasonable belief in that necessity on the part of the arresting police officer, or the objective existence of one or more of those reasons 24 . Read literally, the words used seem to favour the latter interpretation, although it would I think be curious for the legislature to draw a distinction in this way between whether the offender has committed or is committing an offence, and whether it is reasonably necessary for one or more of the stipulated reasons. I suspect that this was a drafting error. [59] It is, however, unnecessary for me to consider the matter further. If what was in fact required was the existence of a reasonable belief on the part of the arresting officer that it was reasonably necessary to affect the arrest for at least one of the stipulated reasons, there was no evidence before the magistrate of that reasonable belief, and indeed the evidence of the arresting officer was to the contrary. If what was required was that it was at the time in fact reasonably necessary for the arrest to be affected for one or more of the stipulated reasons, there was simply no evidence from any source of that. Since for the reasons given above it had not been proved that the appellant had committed an offence earlier, it could not have been established that she would have continued to commit the offence, or repeated the offence, had she not been arrested. [60] There was no evidence that but for the arrest she would have committed an offence there and then. There was no evidence that arrest was necessary to make inquiries to establish her identity, in circumstances where there was no evidence that reasonable inquiries to establish her identity without effecting an arrest had been unsuccessful. There was no evidence that her appearance before a court could not have been secured by some process other than an arrest25 . There was also no evidence that it was necessary to arrest her in order to preserve the safety or welfare of any person, including herself. 24 The language used in Coleman v Kinbacher [2003] QCA 575 at [30] favours the former interpretation, while that used in R v Conway [2005] QCA 194 at [19], [33] favours the latter. In each case there is no indication that this question of interpretation was considered by the Court, or that there was any intention to decide it. 25 The respondent relied on the evidence of Constable Birchley at p46 lines 52-7. But this was directed to a different time, when the appellant was conveyed to the watch house, and was in terms evidence of his belief, and so inadmissible if the relevant consideration was the true facts. -- 18 of 19 -- [61] In Coleman v Power (supra) for one reason or another all of the justices except McHugh J found it unnecessary to consider the question of what the consequence was if the appellant had not been lawfully arrested, in relation to a charge that he subsequently obstructed police in the execution of their duty. McHugh J at p1189 said that such a charge was “predicated on the lawfulness of the action being resisted or obstructed … If the officer acts outside his or her duty, an element of the offence is missing.” Accordingly, the charge of obstructing police could not be sustained, although at p1190 he referred to the possibility of an alternative charge, assault, being open on the facts. In the present case, that issue did not arise before the magistrate, and I suspect it is now too late for it to be raised by the respondent; in any event, the respondent did not seek to do so. [62] In addition, the respondent did not submit that the second offence could be sustained on some other basis if the appellant had not been lawfully arrested. It follows that she was not properly convicted of the second offence, and in respect of that charge, the appeal must be allowed and the conviction set aside. [63] The difficulty which arises in the present case is because there was no longer in the 1931 Act a separate power of arrest in respect of offences against that Act, as was the case at the time of Veivers (supra), and it was necessary to rely on the power of arrest provided in the 2000 Act 26 . In that Act, an arrest by a police officer without a warrant for the purpose of questioning a person about an offence, or investigating an offence, is confined to a situation where the officer reasonably suspects the person has committed or is committing an indictable offence. In the case of a simple offence, there appears to be no power to arrest for questioning or investigation. It appears that this distinction may have been overlooked by both the police officer concerned27 and the magistrate. [64] This was the only ground developed in argument before me in relation to the second charge. It has succeeded, and in the circumstances therefore it is not necessary or appropriate that I say anything in relation to any other of the grounds raised in the materials in relation to the second charge. [65] Accordingly, the appeal is allowed, both convictions are set aside, and in lieu thereof verdict of acquittal is entered in respect of each charge. I will hear further submissions in relation to the question of costs. 26 The provision was section 38 of the 1931 Act; it was omitted by the 2000 Act, section 461, Schedule 3: see Queensland Acts 2000 Vol 1 p488. 27 Who received his training prior to 2000: Tscp p41. -- 19 of 19 --