Allan v Parkes [1999] QDC 235

IN THE DISTRICT COURT HELD AT MAROOCHYDORE QUEENSLAND [Before Dodds DCJ] [Tracey Leigh Allan v. Darren Parkes] Appeal No. 12 of 1999 BETWEEN: TRACEY LEIGH ALLAN Appellant AND: DARREN PARKES Respondent REASONS FOR JUDGMENT Judgment delivered: 2 September 1999 Counsel: P Nolan for the appellant S J Burgess for the respondent Solicitors: Kerin & Co for the appellant Director of Public Prosecutions for the respondent Hearing date: 9 August 1999 -- 1 of 7 -- IN THE DISTRICT COURT HELD AT MAROOCHYDORE QUEENSLAND [Before Dodds DCJ] [Tracey Leigh Allan v. Darren Parkes] Appeal No. 12 of 1999 BETWEEN: TRACEY LEIGH ALLAN Appellant AND: DARREN PARKES Respondent Reasons for Judgment This is an appeal against an order of a stipendiary magistrate convicting the appellant of an offence of obstructing the respondent, a police officer, in the performance of his duties. The alleged offence was against section 120(1) of the Police Powers and Responsibilities Act 1997 (the Act). That section provides that “a person must not assault or obstruct a police officer in the performance of the officer’s duties”. Subsection 120(2), provides that “obstruct includes contravene a requirement or direction under this Act, hinder, resist and attempt to obstruct”. The Act is an act of the Parliament of Queensland. There were three grounds of appeal: 1. The stipendiary magistrate erred in law in finding that the complainant was acting in the performance of his duty at the relevant time. 2. The stipendiary magistrate erred in his findings that I had exaggerated my evidence and that other defence witnesses called had exaggerated their evidence. 3. The conviction is against the weight of the evidence and as such unsafe and unsatisfactory. -- 2 of 7 -- 3 It is apparent from the stipendiary magistrate’s reasons provided when he convicted the appellant of the offence that he disbelieved the evidence in her case. He accepted the evidence given by the prosecution witnesses. No attempt was made at the hearing of the appeal to demonstrate that he was not entitled to form those views. The findings of the stipendiary magistrate establish the factual content of the charge as follows: Two police officers, one of whom was the respondent, had the duty of attempting to execute a recovery order issued by the Family Court pursuant to section 67Q(1)(b) of the Family Law Act 1975. The order was for the recovery of two children. It was addressed to the Marshall, Deputy Marshall, all agents of the Australian Federal Police and all officers of the State and Territory police forces of Australia. It ordered those persons, with such assistance as they required and if necessary by force, to find and recover the children named in the order and to return them to their mother. It authorised those persons, with such assistance as required and if necessary by force, to enter and search any premises or place in which there was at any time reasonable cause to believe the children may be found. The officers went to an address where they spoke to the parents of the respondent to the order (the father of the two children referred to in the order). They were uncooperative. At the address, they saw the respondent’s motor vehicle. They approached a building at the address. A noise was heard inside the building. They unsuccessfully attempted to gain entry by knocking on and trying doors and by calling out that they were police. They then entered the building through a window and located a young female child who was later identified to be a daughter of the appellant. This child did not match the description of either child referred to in the recovery order. No other children were found. A handbag and what appeared to be a man’s wallet was observed on a table in the kitchen. The respondent picked these items up intending to look through them in an attempt to further inquiries. At this point the appellant, who they had not seen before, approached them in an agitated manner, telling them to get out. She snatched the handbag and wallet, throwing them outside the building. The respondent asked the appellant to settle down and warned her that if she continued she would be liable to arrest. He told her they were there pursuant to a Family Court Order regarding missing children and asked her whether she knew anything of them. She did not respond but continued to tell them to get out, that they had no right to be in the residence. The respondent asked for her name. She told him to find out. He noticed a drivers’ licence which had fallen to the floor and retrieved it. The respondent warned the appellant again that if she continued to fail to supply the particulars requested she would be arrested. The appellant snatched the drivers’ licence from the respondent’s hand. The respondent then told the appellant she was under arrest for obstructing police and took hold of her left wrist. A struggle ensued during which the appellant suffered injury to her foot. -- 3 of 7 -- 4 In his reasons for judgment the magistrate indicated that he considered the matter depended solely upon the credibility of the versions given by the witnesses. He found that the appellant knew the real reasons for the police attendance and decided to adopt a stance of confrontation. He found that the respondent was acting lawfully at the time of his search of the premises pursuant to the order and that he had made a request of the defendant pursuant to the provisions of s.23 (2) of the Act, requiring her to state her correct name and address. He found that the existing circumstances where the officers had to climb in through a window, justified them in searching a handbag and wallet found inside in an attempt to locate the children the subject of the warrant. He considered that the appellant by her actions failed to comply with the lawful requirement made of her pursuant to the provisions of s.23 of the Act. He went on to say that s.120 of the Act “includes the additional offence of failing to provide particulars to bring it within the terms of the definition of obstruct as set out in s.120 (2)” of the Act. He concluded that since the appellant had failed to provide the particulars upon request she was guilty of the offence and convicted her. When the respondent was asked in cross-examination to particularise the elements of the obstruction, he indicated that it was not any particular incident, rather the course of action of the appellant in snatching the articles from his hand, that he had warned her if she continued she would be arrested and that he had warned her to supply her name and address details. Asked about the source of his power to require her to provide her name and address he referred to section 23 of the Act. He said that whilst the young female child found alone in the building did not appear to be one of the children whose photograph was supplied with the Family Court Order, he was concerned to identify who she was as he thought some confusion may have crept into the material from the Family Court which he had in his possession. He also said that since he had found a young child alone in a locked building he wished to identify her guardian, as some offence under the Children’s Services Act may have been committed. This latter concern was clearly brought out in re-examination but concern to identify the guardian of the child was touched upon earlier in cross- examination at page 16 when he was being questioned about why he had intended to search the handbag and wallet. One of the reasons he supplied was to see if who owned it may have been the guardian of the child located in the building. Section 23 of the Act provides a power to require a person to provide a name and address if a police officer inter alia: (1) (a) finds a person committing an offence; (b) reasonably suspects a person has committed an offence; (c) reasonably suspects a person may be able to help in the investigation of an indictable offence…; -- 4 of 7 -- 5 (d) is attempting to execute a warrant or serve a summons or other court document on a person In any of those circumstances, sections 23(2) and (3) empower a police officer to require the person to state that person’s correct name and address and in certain circumstances to require the person to give evidence of the correctness of the stated name or address. The police officer when making the requirement must warn the person that it is an offence to fail to state the person’s correct name or address or to fail to provide evidence of the correctness of the stated name or address: subsection (4). Section 23(5) provides that a person must comply with the requirement under subsection (2) or (3) unless the person has a reasonable excuse and sets out a maximum penalty. Subsection (6) provides that the offence against subsection (5) is not committed if the person is not proved to have committed the offence referred to in subsection (1)(a) or (b), to have been able to help in the investigation (subsection (1)(c)) or to be the person named in the warrant, summons or other court document (subsection (1)(d)). Despite the reference to thinking some unspecified offence against the Children’s Services Act may have been committed, the only possible authority for the respondent to seek the appellant’s name and address pursuant to s.23 of the Act on the evidence before the stipendiary magistrate was if she had assaulted him or obstructed him in the performance of his duties. Subsection (1) (c) or (d) was not relevant. Her actions in snatching the handbag, wallet and licence from his hands may qualify as an obstruction as that is defined in section 120 in an appropriate case. Otherwise there was no evidence the respondent had found her committing an offence or to show he reasonably suspected she had committed an offence. It needs to be kept in mind the appellant was not charged with an offence under section 23(5) of the Act. Whilst the definition of obstruct in s.120 (2) includes “contravening a requirement or direction under this Act” I do not think that simply failing to state a name and address when requested pursuant to s.23 amounts to an offence under s.120 (1). I have come to that view because section 23 creates an offence of failing to comply with a requirement to state a person’s correct name and address unless the person has a reasonable excuse for failing to do so and goes on to provide the person does not commit the offence if inter alia it is not proven that the person has committed the offence which was the apparent justification for requiring them to state their name and address. Suppose the person had not committed an offence against section 23(5) of the Act because it was not proved they had committed the offence that was the apparent justification for asking the name and address. Could they nonetheless be guilty of an offence of obstruction under section 120 (1) of the Act for failing to state their name and address when required to do so under section 23? -- 5 of 7 -- 6 If failing to state name and address when required under section 23 was sufficient to support a charge of obstruction under section 120 the other necessary proof to establish guilt under section 23 would be capable of being made redundant. The appellant also submitted the evidence demonstrated that the respondent was at all times acting pursuant to powers granted by an Act of the Federal Parliament namely the Family Law Act 1975. It was submitted that in exercising power granted by a law of the Commonwealth the respondent was not acting in the performance of his duties within the meaning of those words in section 120 of the Act. In support of the submission counsel referred to a decision of the Western Australian Court of Appeal in Kiely & Ors v. R (1974) WAR 180. The appellants had been convicted under the Criminal Code of Western Australia (a state law) of conspiracy to obstruct by means of an act which if done by any one of the conspirators would constitute an offence. The act which it was alleged would be an offence was an act constituting an offence against a law of the Commonwealth. It was held that an offence against a law of the Commonwealth was not an offence within the meaning of that word when used in the charge creating provision in the Criminal Code of Western Australia. The offence must be an offence by a law of Western Australia. The question may be posed whether the duties of a Queensland police officer for the purposes of section 120 of the Act are restricted to duties pursuant to a law of Queensland. The Family Law Act section 67R provides that a recovery order may be addressed to inter alia “every person from time to time holding or acting in a specified office…of a State…”. It seems to me that the duties of a Queensland police officer in section 120 of the Act include any duty he is lawfully empowered to perform whether the ultimate source of the power is a Queensland law or a law of the Commonwealth. Kiely involved a question of construction whether an offence as defined in the Criminal Code of Western Australia was intended to include offences against a law other than a law of Western Australia. It was a different question. Appeals such as this are by way of rehearing on the evidence before the magistrate unless leave is given to adduce more evidence on special grounds. Section 223 of the Justices Act 1886. No such leave was sought or given in this case. Thus this court may give a judgment “as ought to be given if the case came at that time before the court of first instance”(per Jessel MR Quilter v. Mapleson (1882) 9 QBD 672 at 676) subject to remembering that this court is a court of appeal. It did not see and hear the witnesses which places it at a disadvantages in cases where there has been conflicting testimony. In this case however the stipendiary magistrate’s findings regarding conflicting testimony are clear and are not challenged. -- 6 of 7 -- 7 The respondent’s duties at the material time included execution of the recovery order. To do that children named in the order had to be located. He was empowered by the order to enter the building and search it. He was not acting unlawfully in simply picking up the wallet and bag that were inside the building, intending to look at the contents. Nor would he have been acting unlawfully in examining the contents. But the recovery order did not authorise a search by force if necessary of property found in the premises or place. It was clear that the children described in the recovery order were not in the building. It is not to the point that the appellant was generally uncooperative with the police officers. It is not a matter of manners. She was required not to act unlawfully but beyond that she could be as uncooperative as she liked. Unfortunately the trial before the stipendiary magistrate proceeded without a clear particularisation by the prosecution of the facts and circumstances alleged to constitute the obstruction. Counsel for the appellant in his address to the stipendiary magistrate submitted that the police officers had no legal right to attempt to search the bag and wallet found in the building and the appellant was lawfully entitled to object to them doing so. The prosecutor in his address did not respond to this submission with any particularity and introduced the notion of failing to supply particulars when requested pursuant to section 23 amounting to the offence charged. An ex tempore decision was then given. It is apparent from the description of the demeanour of the appellant and from her words and actions as disclosed in the evidence that she at all times asserted the police officers had no right to be in the building and to examine the wallet and bag and that she objected to them examining those items. She was partly correct. The recovery order entitled them to enter the building and search for the children but it did not entitle them to search the contents of a handbag or wallet in the building over an objection to that being done by a person apparently exercising dominion over them. Moreover by the time the incident between the appellant and the respondent occurred it was clear that the children named in the recovery order were not in the building. In the final analysis it seems to me that on the evidence before the stipendiary magistrate it is not possible to conclude beyond reasonable doubt that the appellant was guilty of the offence with which she was charged. In that event the conviction is quashed and the order of the stipendiary magistrate imposing a penalty on the appellant is set aside. I order the respondent pay the appellant’s costs of the appeal. -- 7 of 7 --