LAW GUIDES
Police Powers & Responsibilities in Australia- Know Your Rights
This guide explains, in plain English, what police can and can’t do—and why it matters. It breaks down the legal foundations of police powers (laws, case law and operational guidance), the importance of police acting within lawful limits, and what can happen when they don’t—both for individuals and for public confidence in the justice system.
It also covers practical, real-world issues people regularly face: reasonable suspicion vs belief, searches (including phones), consent, move-on powers, giving your name and address, safeguards for directions, the right to silence, use of force, and how unlawful police conduct can affect a case—including when evidence may be excluded. What Are Police Powers?
Police powers are the specific rules/codes that determine what police officers can and can’t do. Police powers are generally given under statutory provisions (laws) but can also be provided in case law (precedents) and other documents such as operational and procedure manuals.
Why Is It Important for Police to Act Only Within Their Powers?
Police are not above the law or immune to the law and are just as accountable before the law as anyone else. Firstly, because individuals have rights at common law and the courts place great importance on those rights. “Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England ‘without sufficient cause. ’ In the case of Toobridge v Hardy Justice Fullagar stated that the; ‘Right to personal liberty is the most fundamental, elementary right at common law.’ This fundamental right was also referred to by Mason and Brennan JJ in their joint judgment in Williams v The Queen. Whilst Justice Dean in Cleland v The Queen says;‘It is of critical importance, to the existence and protection of personal liberty that the restraints the law places on police officers are scrupulously observed’. In other words, it is held by the courts at common law that, courts will not look too kindly on Police officers ignoring technicalities of law.
The International Covenant of Civil and Political Rights provides; ‘People shall not be detained arbitrarily’.
What Happens When Police Don’t Act Within Their Powers? The Need for Balance.
Police must balance the rights of individuals with their responsibility to protect themselves and the wider community. Where these needs are not balanced effectively, the result can endanger life.
Let’s consider a spectrum. At one end of that spectrum, individual rights are temporarily breached however, no serious violation, injury or assault against an individual takes place. Consider however, the other end of the spectrum, where the result of this breach is death. The case of David Gundy is an example of perhaps the most extreme form of consequence of Police acting outside of their powers.
David Gundy Case
David Gundy was a 29-year-old aboriginal man, killed by the Special Weapons and Operations Squad (SWOS) of the New South Wales Police Force in 1989. Mr Gundy was at home in Marrickville, in bed, unarmed and his child was in the next room when the fatal shooting took place .
The Police claimed that during the raid on Mr Gundy’s home shortly before dawn, heavily armed Police stormed into Gundy’s room where he was in bed and awoke to find Police officers inside his room. My Gundy rose up and out of the bed when a struggle occurred and one of the Police officers, Sergeant Dawson ‘accidentally’ discharged his shotgun during the struggle.
Police were conducting a search for another man, John Porter who had previously shot at and seriously injured two police officers. Officer Alan McQueen later died from his injuries.Police raided six homes during the search for John Porter and neither of these raids resulted in the finding of and arrest of Porter. A Royal Commission into the death, found that the Police raid on Mr Gundy’s home was unlawful, stating;‘Police had no legal right to enter his home at all, much less point a loaded and cocked shotgun at him’, and made ‘serious misjudgements and to treat SWOS guidelines, the police instructions and the law and its processes disdainfully’
and that there was; ‘No real evidence that Porter would be at either of the homes raided’, and found that the search warrant Police used to raid the home was invalid; ‘By the making of patently untrue statements. Police had also failed to follow the strict restrictions applying to the warrant, by executing the raid before 6am. Police failed also, to announce themselves at the premises and to demand entry prior to entering. This is a most serious example of what can/could happen when Police act outside of their powers and responsibilities.
R v Ablitt
The Case of R v Ablitt considered an application by Senior Constable Ablitt, to appeal a sentence after he had entered a plea of guilty for being an ‘accesory after the fact’, to the unlawful assualt occassioning bodily harm of Dulcie Isobel Birt by Constable Burkitt.
The Court was asked to consider reducing the sentence imposded on Senior Constable Ablitt as the sentence given to him was more severe than the sentence given to the principal offender, Constable Burkitt.
Constable Burkitt and another constable arrested Dulcie Isobel Birt for shoplifting offences and transported her to the Loganholme Police Station and placed her into one of two holding cells. Senior Constable Ablitt was the shift supervisor and most senior officer on duty at the time. In accordance with his duties as shift supervisor Senior Constable Ablitt placed a tape into the video recording system to record Dulcie Isobel within the holding cell. It was his duty to ensure the camera was working and that the camera continued to operate until the cell was later vacated. Ms Birt refused to sign the watch house book and had a verbal altercation with Constable Burkett. Constable Burkett then assaulted her by grabbing her on the back of the neck by the hair. He took her up the hallway and pushed her face first into the holding cell. Burkett slammed the door of the cell and said words to the effect of “If you think I’ve just started you’ve got another fucking thing coming, slut.” Ms Birt then kicked the door with her right foot saying, “Well I’ve just started too, you cunt.” This caused Burkett to come back into the cell, rush at Birt, grab her around the throat and pin her up against the cell wall. Burkett went to punch her in the face with his right clenched fist but stopped about half a centimetre from her face. This part of the assault was all captured-on video tape. However, the applicant, Senior Constable Ablitt who had control over the video recording, intentionally stopped the recording at this point. Birt then punched out at Burkett as she thought she was going to be punched. Burkett then punched Birt seven or eight times in her face and under her ribs. She buckled and curled up crying in the seat in the corner. None of this serious assault was captured on video tape as the applicant had deliberately turned the video recording off as soon as Constable Burkett went to punch Ms Birt in the face with his fist. After the assault on Ms Birt, she was taken to the Beenleigh Watch House where she informed a friend by telephone that she had been assaulted. Her friend, who picked her up when she was released, noticed bruising, markings to her face, and that she was holding her ribs. Ms Birt attended at a doctor’s practice on the following day, and he noted injuries consistent with the description of the assault by Burkett. Burkett prepared a brief of evidence for the charge of assault by Ms Birt on him which included signed statements from Burkett and Castley and an unsigned statement from another police officer who is a flatmate of Burkett’s. Burkett claimed falsely that he had been kicked by Ms Birt in the shin. Castley claimed not to have seen any of the incident. No mention was made by Burkett of his assault on Ms Birt nor that there was a video tape of any of the incident. Such behaviour warrants severe and condign punishment in particular to deter others in a position of power or trust who may be tempted to commit similar criminal acts and to publicly denounce the behaviour in which the applicant was involved. Pincus JA observed in R v Smith & A-G of Qld that;“The cohesion of our society depends in substantial part on public confidence in the honesty of those who administer justice. Police have extensive powers. Their activities can ruin reputations, can put citizens in gaol, or can save them from deserved gaol.” On appeal, it was argued on behalf of the applicant that the sentence imposed on him could give rise to a justifiable sense of grievance when compared to the sentence imposed on Burkett. The principle of parity however has little utility in a case such as this. As Sangster J of the Supreme Court of South Australia observed of the offence of being an accessory after the fact in R v Mills ;“At first sight there may seem to be some basis for thinking that the categorization of the acts of the accessory depends upon the particular felony to which it relates and to the circumstances of the commission of that felony by the principal felon. On reflection, however, I am sure that such thinking is in conflict with the plain meaning of the words of s. 268 and out of step with fundamental principles of sentencing. The offence of being an accessory after the fact is, primarily, that of assisting the felon who has already committed the principal felony. An ordinary example would be to shelter or harbour a felon to enable him to avoid apprehension or to conceal the evidence of the principal felony. In most examples that come readily to mind the accessory would be most unlikely to know the whole of the circumstances of the principal felony. The gravamen of the accessory’s crime is to stand between another felon and the law. To judge an accessory by reference to the nature and circumstances of the principal felony would in most cases involve punishing the accessory – or extending leniency to him – according to the seriousness or otherwise of the criminal conduct of another person for whose conduct he was not responsible and of the details of which he was unaware. In any case the Legislature has not linked the punishment for the accessory with the nature of the principal felony but has provided the one maximum sentence for being an accessory after the fact to any felony. In my opinion, the conduct of the accessory alone is in question.” However, as the most senior officer on duty, the applicant was Burkett’s superior officer and responsible for the well-being of prisoners in police custody in that police station. While the assault by Burkett might have been a response to a difficult and challenging situation which developed quickly, the applicant acted deliberately to conceal criminal behaviour by another police officer. By assisting Burkett to escape detection for the offence, he made possible the circumstances in which Burkett committed the further offences. His dereliction of duty, if it went undetected, had the capacity to undermine public confidence in the integrity of the police service and the administration of justice. Ablitt was sentenced on a plea of guilty to one count of ‘Accessory after the fact’ to and ‘assault occasioning bodily harm’ and received a term of 15 months’ imprisonment, suspended after 5 months for two years. This was an example of how the Courts treat officers who have a disregard for the law, their responsibilities and their duties.
What Powers Do Police Have in Australia?
In Queensland, Police powers are governed by the Police Powers and Responsibilities Act also known as the (PPRA) established after the Fitzgerald Inquiry into police conduct in 1989. Prior to 1989 Police had powers under common law and more than 90 statutes, making it difficult for Police to effectively know their responsibilities. After the introduction of the Police Powers and Responsibilities legislation, these powers were consolidated . Section 809 of the Act provides for the enactment of regulations and in 2012 a regulation was introduced providing even greater detail. In May 1987, Acting Queensland Premier Bill Gunn ordered a Commission of Inquiry after the media began reporting on Police corruption, involving gambling and prostitution. Tony Fitzgerald QC was tasked with leading this Inquiry and it later became known as the ‘Fitzgerald Inquiry’ .
The Inquiry found that there was widespread corrupt conduct within the police force, evidence and admissions were being fabricated and Police were receiving bribes. The original Act was introduced in 1998 however, as it changed so much within the first two years, a new Act , the current Act was introduced in 2000.
Originally only expected to take six weeks, the Inquiry took almost two years investigating long term, systemic political corruption. Following the Inquiry four Government Ministers, Former Police Commissioner Sir Terence Lewis, Former Premier Joh Bjelke-Petersen and countless members of the police force were prosecuted, leading ultimately to the establishment of the Criminal Justice Commission (CJC) now known as the (CCC) Crime and Misconduct Commission.
In Other States and Territories
Police Powers and Responsibilities in New South Wales
Other ManualsThe Police also use have their own internal policies and use operational manuals to guide what they do, and how they do it. Such manuals are reference tools that help police officers correctly implement their policies and procedures. In Queensland the Police perform duties as directed by the Operational and Procedure Manual, the DERIE Manual and the Traffic Manual. The DERIE Manual outlines how QPS manages the recording of interviews and evidence. The Operational Procedures Manual outlines how QPS will conduct procedures including coronial matters, investigations, driving service vehicles and The Traffic Manual outlines how QPS conducts road safety activity, including speed checks, drink and drug driving checks, vehicle impounding and more.
The Operational Procedure Manual (OPM) The Operational Procedures Manual is issued pursuant to the provisions of s. 4.9: ‘Commissioner’s directions’ of the Police Service Administration Act . The aim of this Manual is to provide members with guidance and instruction for operational policing. It provides links to associated Service policies, Manuals, instructions and resources and requires local procedures to be developed at regional, district and station or establishment level. Members are to comply with the contents of this Manual so that their duties are discharged lawfully, ethically and efficiently and failure to comply with the contents may constitute grounds for disciplinary action. However, it is recognised in policing, many decisions must be made quickly having regard to diverse circumstances and it is not possible to instruct members on every possible scenario. Therefore, in accordance with the section titled ’Use of Manual’ of this Manual, the general policies and procedures may, where justified, be adapted to circumstances as they arise. The contents of this Manual will be continually reviewed and updated to ensure currency and consistency with the law and community expectations. Members are to make themselves familiar with the contents of this Manual in order to carry out the Service's functions and deliver an effective level of policing to the community. Let’s now consider three more cases where the need for balance was not met and this resulted in a death or serious injury of an individual taken into custody.
Miss Dhu Case
The Miss dhu case is another extreme example where failure of the Police to adequately fulfill their responsibilities, led to a death in custody, the death of Julieka Ivanna Dhu. In 2014, Miss Dhu was a 22-year-old Aboriginal Australian woman arrested in relation to unpaid fines.
Whilst in custody, Miss Dhu complained of pain and was taken to the hospital where hospital staff told Police that her complaints were exaggerated and associated with drug withdrawal. 2 days later Miss Dhu again complained to the police about her pain and could no longer stand. Police officers accused her of faking her condition and handcuffed her to the back of a prison van where she later died.
The official cause of death was an infection caused by an untreated fractured rib however, an internal Police investigation found that 11 officers had failed to comply with Police regulations and were guilty of misconduct, receiving written and oral warnings. A coronial inquest later found Miss Dhu had suffered “unprofessional and inhumane” handling by police and “deficient” treatment from the hospital staff. The Inquest also established that Police had been influenced by “pre-conceived ideas about aboriginal people” and recommended individuals no longer be imprisoned for unpaid fines.
In 2020, six years after the death of Miss Dhu, the Government of Western Australia ceased jailing people for unpaid fines.
Mr Ward Case
Another extreme case of mistreatment whilst in custody, sadly ending with the death of Mr Ian Ward, an Aboriginal Elder from Warburton in Western Australia. In 2008, Mr ward was arrested and charged by Police for ‘driving under the influence of alcohol’ and transported 570kms to the nearest Court where he was remanded in custody.
As a result, Mr Ward was to be transported to a prison 352kms away. The temperature was 47 Degrees that day and was noticed by Prison transport contractors driving the vehicle, to be laying on the floor of the van. The air-conditioning was not working that day and the contractors failed to stop the van to check on Mr Ward. Mr Ward later died and was found to have suffered a cut on his head from a fall and third degree burns on his stomach from where he lay in the prison van.
In 2011, the Western Australian Department of Corrective Services pleaded guilty to his death .
Henry v Thompson
In 1989, an Aboriginal man from Queensland Mr Henry, successfully sued three police officers for assaulting him in the Watchhouse, setting a precedent on the types of damages awarded against Police officers acting outside of their powers and responsibilities.
Mr Henry was arrested and taken away from dancing in a nightclub, for using ‘obscene language’. Mr Henry was subjected to inhumane treatment, police brutality and humiliation. Officers Doolan and Thompson first punched Mr Henry and when he tried to get away from the attack he was stopped by Smith, the Watchhouse manager before being kicked repeatedly, having his head jumped on by all three officers before Officer Doolan urinated on him. The Court in this case, awarded Mr Henry $25,000 in damages for the treatment however, the three officers involved appealed the decision for being ‘manifestly excessive’. The appeal was heard in the Supreme Court where Williams J, described the conduct as “inhuman” and “calculated to cause the greatest possible insult and humiliation. ” Williams J considered the definition from Lamb v Cotogno, that aggravated damages are ‘awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like’. He went on to say; “The act of urination in the course of an assault would…call for an award of aggravated damages. But when the guilty party is a police officer, a person in authority, and the act is performed in the presence of other senior ranking police officers, the incident cries out for an even higher award. And finally, when one adds into the case the racial overtones present here, then a jury assessment of the appropriate award for aggravated damages is largely unrestrained. It hardly lies in the mouths of the appellants to complain that the award is too high.”Highlighted here are just a few examples of what happens when Police fail to act within their responsibilities and serve to remind us of the importance of balance. In each of these instances highlighted above, the accused was either an innocent individual or an individual charged with a non-violent/non-serious offence and could have been dealt with differently.
Unfortunately, instances where Police officers are prosecuted or held accountable by the individuals, they have mistreated are rare. This lack of accountability is what keeps Police officers mistreating people. Personally, I have been mistreated by Police officers during almost every single arrest and placement in custody.
Personal Experience
Just recently I was arrested, mistreated and assaulted by Police. A group of indigenous individuals were arguing and two of those individuals raised their fists and were threatening to assault each other. I placed myself (at risk) between the two individuals and convinced them not to fight one another. I had asked both of them whether they had ever spent time in Lotus Glen (local correctional facility) of which they affirmed, and I told them that in order to avoid going back there, they would need to stop.
Shortly afterwards, local Police arrived at the scene and began threatening the group with the use of Capsicum spray if they did not disperse, before arresting one of the instigators. I told Police that this individual had not yet assaulted anyone and there was no need to arrest this individual as I had been a witness to the preceding incident. I was told I was being a ‘public nuisance’ and arrested.
Further, in the watchhouse I was placed into a cell of my own however, a short time later two indigenous individuals were placed into the cell with me. There was no toilet paper in this cell denying each of us, a ‘necessity of life’. More importantly, one of the indigenous individuals, an older man in his 50s or 60s began to experience chest pains.
I informed the Police via the intercom in the cell, (installed for medical emergencies), that this individual was experiencing chest pain and in need of medical attention immediately. I was told to ‘shut up and go to bed’. The Police then disconnected the intercom, and I was no longer able to use it to request medical attention.
I began banging on the cell door in order to get the attention of officers nearby, who told me to ‘pull my head in’ and asked me ‘who do you think you are? a humanitarian?”. After responding in the affirmative and continuing to bang on the door, officers finally approached the cell and indicated they would enter.
Upon entering the cell, I was told to ‘sit down’ and ‘shut up’ and I complied with the direction. The officers then went over to the man that was experiencing chest pains and began to force his confession, for what sounded like a theft offence whilst he was under medical duress. I informed the officers that this type of forced confession was wrong, was not admissible and that I was a witness to the mistreatment of the individual. I was then taken by the group of officers to another cell where I was assaulted, my head was slammed into the concrete wall and my arm had been twisted and folded behind my back. I began to request medical attention from staff afterwards, but these repeated requests were denied.
I have experienced similar treatment on many occasions in police custody and I have witnessed some terrible incidents. I have now dedicated my life to exposing these injustices, and preventing the continued mistreatment of individuals by police, educating as many individuals as is possible. I believe that a combination of civil action and private prosecutions will hold police accountable, responsible and liable, leading to more equal and just treatment.
What Is Reasonable Suspicion and Belief?
Some arrests and almost all searches conducted by police will rely on the establishment of a ‘reasonable suspicion’ or ‘belief’. An individual’s personal liberty must be carefully balanced with the rights of the Police to arrest or search an individual over ‘suspicions and/or beliefs. Durward SC DCJ in R v Varga defined reasonable suspicion, “The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced. If a young man is driving a smart car with some panel damage it is not sufficient to give rise to a reasonable suspicion.” George v Rockett The Court in George v Rocket , the leading authority when determining the difference between mere belief and reasonable suspicion, the High Court described clearly, that where a reasonable suspicion must exist to establish a right or to allow an act, there must be an objective test applied whereby, the court considers what would be in the mind of an ordinary person when presented with all of the facts.
Michael Daniel Rockett, from the office of the Special Prosecutor asserted in an application for a search warrant that, he had ‘reasonable grounds’ for suspecting some documents were in the possession of solicitor Q. D George. The documents were said to be written by Sir Terence Lewis. (The Former Police Commissioner who was later charged with criminal offences following the Fitzgerald Inquiry).
Rockett believed the documents would prove Sir Lewis had committed perjury in the Court allowing for his prosecution. The Magistrate allowed the search warrant however, the High Court later considered an appeal made by Q. D George and concluded that, the warrant was invalid in the absence of any information in the sworn complaint that may have satisfied the Magistrate of the ‘reasonable grounds’ for Rockett’s belief. Ultimately, the High Court held that Rockett’s ‘belief’ presented in his application was not enough and that he had not demonstrated a ‘suspicion on any reasonable grounds’.
What this case highlights are the importance of and differences between a ‘belief’ and ‘reasonable suspicion’. Police cannot act on a belief or a mere hunch, there is an objective test which must first be applied. The Police must be asked ‘why did you think this way?’ and ‘what evidence do you currently have that this is the case?’ This prevents Police from being able to stop, search and arrest almost anybody, anywhere, anytime for anything.
R v LR
In this case of R v LR , the Court considered whether an admission of guilt should be considered admissible in circumstances where the Police interviewed an individual accused of rape whilst intoxicated. In Sinclair v The King , Dixon J states that;
“a confession made by a defendant “more or less” under the influence of intoxicating liquor “is not inadmissible as evidence unless the degree of intoxication is so great as to deprive him of understanding what he was confessing”.
There is also provision in the Police Powers and Responsibilities Act which applies when a police officer “wants to question or continue to question” a person “who is apparently under the influence of liquor or a drug”, that requires an officer to delay question until “reasonably satisfied” that the influence of the liquor “no longer affects the person’s ability to understand his or her rights and to decide whether or not to answer questions” .
McPherson J considered the rules established in Sinclair v The King and states further, The Court imposes an objective criterion, there must be external evidence of indicia of alcohol and that it does not matter what the police officer ‘believes’, only if the indicia would be evident to reasonable person.
The confession of the accused in this case, was introduced during the trial and the accused was found guilty. Legal representatives for the accused appealed the decision on the basis that the confession should be excluded from evidence, as the officer who took the confession did not apply the ‘reasonable suspicion’ test and relied only on his belief that the accused was no longer intoxicated. The Court allowed the appeal, and the convictions were quashed.
R v N
The Court was asked to consider in R v N whether text messages found on a phone during an illegal search by Police should be declared admissible or not. Ultimately the Court was asked to determine whether the desirability of admitting the text messages as evidence, outweighed the undesirability of illegal and intrusive means of obtaining them. The Court in this case ruled that the material be deemed as inadmissible.
Police on this occasion were acting on a public nuisance complaint and had obtained information suggesting, there was drug use in the hotel room shared by N and her friends. The police were operating under the provisions of the (PPRA) and did not make an application for a warrant to search the hotel room. N was subjected to a strip search by an officer which produced a negative result (the first search). At this point the officer was just following orders and held no personal suspicions about N having drugs. Believing (wrongly) that drugs had been found elsewhere on the premises, the officer proceeded to search N’s handbag for any illicit items (the second search), where the officer found $305.55 in cash and the iPhone. Suspecting that the money was proceeds of crime, the officer then seized the iPhone to search it for any signs of use in connection with drug dealing (the third search). Incriminating text messages were found during the third search confirming that N had been engaging in the trafficking of drugs. There was no question that the first and second searches were legal, as the police responded to a complaint that included drug use and that, the police ‘reasonably suspected’ at the time there was evidence of drug use in the hotel. The question for the court was whether after searching the bag, there was enough ‘reasonable suspicion’ to search the phone. The Chief Justice on this occasion stated;“Free societies have a deeply rooted aversion to needless State intervention and interference with individual freedoms and civil liberties. This is reflected in the tight rein kept by the common law on police search and seizure powers for criminal investigation purposes. Truth and justice cannot be pursued at all costs or by any means. Democratic values such as personal integrity, privacy and private property rights, including possession and quite enjoyment, cannot always be sacrificed to meet law enforcement goals” .The Court ruled the evidence inadmissible. R v Peirson This case of R v Peirson also considered the admissibility of evidence obtained from a phone in relation to drug use, leading to the charge of ‘drug trafficking’ against Mr Peirson. Mr Peirson was stopped by Police after he emerged from a taxi in Brisbane’s Fortitude Valley, with a group of young people in possession of open alcohol bottles. Police acted pursuant to s 29 and s 30 of the Police Powers and Responsibilities Act , permitting an officer to search anything in the possession of a person detained required by the the officer, who ‘reasonably suspects’ the person has something on them that may be considered unlawful, a dangerous drug or that may be evidence of the commission of an indictable offence. Those sections provide relevantly: Section 29 - Searching persons without warrant(1) A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following;(a) stop and detain a person;(b) search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.Section 30 - Prescribed circumstances for searching persons without warrantThe prescribed circumstances for searching a person without a warrant are as follows;(a) the person has something that may be;(ii) an unlawful dangerous drug; or(vi) evidence of the commission of a seven-year imprisonment offence that may be concealed on the person or destroyed; …” Senior Constable Price was the arresting officer who saw Mr Peirson getting out of the taxi and approached Mr Peirson. His evidence was that he spoke to Mr Peirson and another man called Mr Shaughnessy while Sergeant Mitchell spoke to two or three others. He first spoke to Mr Peirson about drinking from an opened alcohol container and told him that was an offence. He then observes Mr Peirson unsteady on his feet, his pupils dilated, sweating a bit and “licking his lips profusely”. He also said that he was not smelling highly of alcohol. He then formed the view that Mr Peirson was under the influence of a drug rather than alcohol mainly because he was licking his lips.Sergeant Mitchell then indicated to him that he had located drugs on another man from the group, Price then detained Mr Peirson for a search, telling him he reasonably believed he had dangerous drugs on him and asking him to turn out his pockets. Mr Peirson had no drugs in his pockets but was visibly shaking and starting to sweat profusely on the upper lip. He had a mobile phone in his possession and Senior Constable Price asked him whether he had any drug related messages on it to which he replied: “Ah, there shouldn’t be” which is when the officer started looking into his mobile phone. Senior Constable Price said that, in his experience as an officer covering about 8 years patrolling in Fortitude Valley, people in possession of drugs use mobile phone text messages to obtain the drugs. He found some apparently drug related messages on the mobile phone, activated his recording device, gave Mr Peirson the standard warnings and recorded the balance of the encounter. The court held on this occasion that Police had a ‘reasonable suspicion’, and the evidence was allowed.
The Issue of Consent
In circumstances where Police have been given consent, they can undertake activities outside of their powers and responsibilities. They could ask you to show them your bag or ask you to empty your pockets and/or accompany them to the police station for example. Dalton J in Bossley asked and answered, where ‘consent’ to a search is given, “that will be an answer to any allegation of unlawfulness of a search” (referring to Malone v Metropolitan Police Commissioner) . In Halliday v Nevill & Anor, the majority held that a police officer had an implied license to enter the driveway of a premises that were not locked or barred by an obstruction in any way, to arrest a man and in Coco v R, the Court allowed an appeal against a conviction that involved the use of evidence obtained by means of a listening device installed and maintained within a private premises. Mason CJ and Brennan, Gaudron and McHugh JJ wrote, at 435-436: “In accordance with [the principle that every unauthorised entry upon private property is a trespass] a police officer who enters or remains on private property without the leave or licence of the person in possession or entitles to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law” and “It has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain on private property was intended.” R v Varga The applicant Benjamin Julian Varga (“the accused”) was charged with one count of trafficking in a dangerous drug, ten counts of supplying a dangerous drug, one count of possessing a dangerous drug and one count of possessing a thing used in connection with trafficking in a dangerous drug. A pre-trial application considered whether the police, in executing a lawfully issued search warrant, exceeded the powers provided by the warrant, by accessing information on a mobile phone that was found by police in the search of a residential premises. The search warrant authorised a search by police and authorised the seizure of property found in the premises at which the accused and others lived. The warrant named two other persons who were not present, the accused just happened to be there. The police found the accused mobile phone and inspected it. The officer asked the accused if he could look at the phone and the accused consented, providing his passcode to Police. An officer then informed him he had found some information in SMS text messages on the mobile phone that he believed were relevant to the commission of offences involving dangerous drugs. The court was asked to determine whether, the officers had the right to access the accused phone under s154 of the Police Powers and Responsibilities Act , as the warrant had no provision for accessing phones. Durward SC DCJ concluded, “If the information necessary to access the content of the mobile phone had not voluntarily or otherwise by consent been given to Pritchard then the police could not have obliged the accused, or any other person for that matter, to divulge the access information, other than by resort to the specific power provided by an order made by a magistrate or a judge pursuant to s154 . However, in this case the accused was co-operative. He responded to the questions asked about the mobile phone by volunteering the access information. Hence resort to an order pursuant to s154 was not necessary. It seems to me that he made a ‘conscious decision’ so to do”. Ultimately finding the phone search lawful, as the accused freely consented to the search.There are many authorities that deal with evidence unlawfully obtained pursuant to search warrants such as the case of R v Christensen wherein Holmes JA iterated “The importance of strict adherence to the statutory requirements in the context of search warrants has repeatedly been emphasised”. Bossley’s Case
Mr Bossley was in his early 20’s, attending a music festival in Brisbane when approached by plain clothes police. Detective Senior Caulfield was one of about 20 police officers in the area tasked to detect people in possession of illicit drugs in the crowd at the festival. On seeing Mr Bossley, the Detective thought he seemed excited, hyperactive and quite talkative compared to others and his overall impression was that was something out of the ordinary, he could be under the influence drugs or in possession of them.
The Detective then approached Mr Bossley and asked him whether he had any drugs on him to which, Mr Bossley replied in the negative. The Detective then noticed he had a bumbag and asked if he could take a look, Mr Bossley offered him the bumbag and the Detective opened the bag and found a clip seal bag containing pills, it was at this point Mr Bossley was detained for a search.
The Court found on this occasion that the Police did not have a ‘reasonable suspicion’ to search however, because Mr Bossley consented to the search of the bumbag, it was held that the search was legal. Police can ask questions of anyone by way of consent and do not need to comply with the responsibilities otherwise contained in the Police Powers and Responsibilities Act .
Still, it is not just what the accused believes is consent, the Court’s look at the behaviour of Police, Were they overpowering, applying pressure or forceful in any way and if they are, you may have a defence however, simply complying because you ‘think you have to’ is not enough and the Police often rely on the consent given by individuals when acting outside of their rights and responsibilities.
What Happens When Police Act Outside of Their Powers?
In circumstances where Police act unlawfully and/or outside of their powers, a few things can happen. Firstly, the evidence obtained illegally, such as a confession, text messages, physical evidence of drugs or illegal items can be declared inadmissible in Court, seriously affecting the outcome of any case brought against an accused person.
Secondly, any case brought against an accused person may be thrown out by the Court or not proceeded with, if the prosecution feels there is limited chances of success for example.
Thirdly, the officers involved may be investigated, suspended or stood down, could be held accountable and have criminal prosecution brought against them or they could be taken to account by an accused person through a civil action. I have considered some of these cases below.
Whitelaw v O’Sullivan
The O’Sullivan case considered the excessive use of force. In 2008, Michael O’Sullivan was found guilty in the Brisbane Magistrates Court of common assault. In 2007, Mr O'Sullivan was working as a police officer when he was called to a disturbance at Caesar's nightclub in Brisbane.
The accused was detained "for a breach of the peace" under s 50 of the Act . Mr O'Sullivan joined police officers Higgins and Arndt. Mr O'Sullivan sprayed the complainant twice with capsicum spray. Constable Arndt also sprayed the complainant with capsicum spray at the same time as Mr O'Sullivan sprayed the complainant the second time. After these three capsicum sprays, the complainant was on one knee on the ground. As he was getting up, Mr O'Sullivan hit him three times with his baton. Those three strikes were particularised as constituting the assault. The prosecution alleged that they were "excessive in the circumstances".
Mr O'Sullivan gave evidence that the complainant's group was noisy and aggressive. He saw the complainant's left arm move towards Constable Higgins in a threatening way. The complainant was a large man and was wiping capsicum spray from his eyes and turning his head. Mr O'Sullivan was concerned the complainant might assault him. He sprayed the complainant a second time, coinciding with a spray from Constable Arndt. The complainant, however, remained upright although bent over; he briefly went down on one knee and then got up. Mr O'Sullivan was concerned that the complainant might assault him or another police officer. He reached for his baton which was about 50 cm long.
In using the baton, Mr O'Sullivan was attempting to subdue the complainant to prevent him from getting up and assaulting police. He struck twice with the baton. When these two strikes did not subdue the complainant, he delivered a third strike. He tried to hit the complainant as hard as he could. Whilst using the baton, Mr O'Sullivan continued to direct the complainant to "Lay down on the ground". Only after the third baton strike did the complainant completely drop to the ground. Prior to using the baton, Mr O'Sullivan considered the complainant posed a very significant threat to his safety and that of other police officers as he still had the ability to carry out his threat of assaulting them.
Mr O’Sullivan appealed the finding to the District Court overturning his conviction however Stephen Allan Whitelaw was the investigating officer attached to the Crime and Misconduct Commission who prosecuted the officer and Mr Whitelaw sought leave to appeal the District Courts decision to overturn, given it involved important questions as to the provisions found in the Police Powers and Responsibilities Act and that Police should be held to account for their use of force. Ultimately, the Supreme Court overturned the District Judges finding and confirmed the Magistrates earlier conclusion, that the Officer was guilty of common assault.
The Magistrate, upon viewing the Council’s ‘City Safe’ CCTV footage stated, "The video quite clearly shows that [the complainant] did not move towards [the respondent] in a violent manner, prior to being sprayed for the first time…after being sprayed on the second occasion by [the respondent]….[the complainant] was bent right over, he crouched down" Also adding, "It is plain for all to see what he was doing and it wasn't striking towards a police officer. Furthermore, Arndt didn't step back, he remained where he was, which was precisely in front of [the complainant]." The magistrate considered s 24 of the Criminal Code (mistake of fact) however, He concluded beyond reasonable doubt that, on the evidence, even if Mr O'Sullivan was acting under an honest belief that he or his colleagues were about to be assaulted, such belief was not reasonable. He was in no position to carry out any threat of violence: "It would not be and was not reasonable to believe that he was going to assault them." The Exclusion of Evidence
There are actions Police may take that allow for the exclusion of evidence in certain circumstances mentioned above. Below, are some examples of exclusionary rules. Involuntary confessions can be excluded. This is not at the discretion of the Court either, it must be excluded based on the standard of ‘balance of probabilities.
R v Ridgeway
R v Ridgeway considered entrapment by the Police and is considered one of the leading cases regarding entrapment, as a defence in Australia. The offender was charged with a breach of section 233B(1)(c) of the Customs Act 1901 (Cth) for the importation of 140.4 grams of heroin. The charge was a result of a ‘controlled’ operation between the Australian Federal Police (AFP) and Malaysian Federal Police (MFP). The offender contacted an old friend, Lee, who he had met whilst serving a jail term in a South Australian prison for drug related offences. Upon release, Lee was deported to Malaysia and subsequently became an informant for the MFP. Once the offender was released, he contacted Lee to arrange to purchase heroin to import into Australia. Lee and a Malaysian police officer, acting with the knowledge and co-operation of the AFP, were given visas by the Australian High Commission in Malaysia, and imported a quantity of heroin into Australia. The heroin was cleared through Customs as arranged by the AFP and Australian Customs Service and upon delivery of the heroin the offender was apprehended. In this case the importation was supported by and encouraged by the AFP who arranged for the informant to travel with the heroin, and also knowingly allowed the heroin into the country clearing the heroin through customs. The AFP in doing this, were committing various trafficking offences themselves and so the offender in this case argued that he was ‘entrapped’. The High Court of Australia held in the Ridgeway case that there was no practical defence of entrapment. Although, the court did recognise that as a matter of public policy, courts must exercise a discretion to exclude any evidence of any offence that was brought about by unlawful conduct of law enforcement officers. The purpose of this discretion is to discourage such unlawful conduct by Police. It was further held that this discretion extends to circumstances where a criminal offence has been induced by improper conduct, not just unlawful conduct, by law enforcement. For Ridgeway, the High Court ultimately held that the evidence which proved that the heroin supplied to the appellant had been illegally imported and should be rejected. Their Honours drew attention to the ‘calculated’ and ‘grave’ actions of the AFP, especially that:• their actions constituted an offence in that the AFP allowed the drugs to be imported• the police officers involved had not been prosecuted though they, too, had committed an offence• there was no evidence of any official disapproval or retribution, and• the objective of the AFP’s criminal conduct would have been achieved if the evidence were admitted.The court weighed these factors against the public interest in Ridgeway’s conviction. They determined that the public interest could be satisfied in this case by the availability of a variety of offences that could be applied against the offender which did not involve illegally importing heroin. R v Foster
A trial Judge in R v Foster , considered whether an involuntary confession made to the Police, should be admitted as evidence. A 21-year-old indigenous man was convicted in New South Wales for maliciously setting fire toa High School building in Narooma. The prosecutions whole case rested on a seven-line confessional statement which the appellant had signed while being held in custody at the Narooma Police Station. The appellant said that the confession had been fabricated by the police and that they had threatened to take him "out the back of Narooma" and "bash" him as well as "pick up" his "young brother" so he signed the confession.
The confession was admitted into evidence at the appellant's trial despite his challenge to its voluntariness and his submission that the confession should be excluded in the trial judge's so-called fairness discretion pursuant to R v Lee.
Mr Foster appealed the decision and The High Court later acknowledged that the appellant had not been given an opportunity to contact a lawyer, the police at the time the appellant was arrested had no real evidence to justify the arrest and held that, it is unlawful to arrest a person solely for questioning.
It was clear from the police evidence that the unlawful arrest and detention of the appellant was purely for the purpose of questioning and the appellant was required to remain at the police station until the police had finished their questioning that was likely to carry with it an "implicit threat of continued unlawful detention unless and until the questions of the interviewing police are answered to their satisfaction."
The High Court overturned the Trial Judges decision to admit this evidence. In addition, their Honours indicated that the circumstances of this case were such that the evidence should have been excluded on the basis of the public policy discretion (Bunning v Cross ) because the discretion to exclude unlawfully obtained evidence on public policy grounds aims to reduce 'deliberate or reckless disregard for the law by those whose duty it is to enforce it... ‘.
Foster v R indicated clearly that unlawful detention is an important consideration for the trial judge's determination of exclusion on the discretionary grounds of unfairness as well as public policy. The majority of the High Court acknowledged that unlawful detention, may contain an implied threat to detain an accused until police questions have been answered to their satisfaction and such an acknowledgment will undoubtedly be relevant to trial judges' determinations of whether confessions are voluntarily made.
R v Keen
In cases where evidence may be obtained illegally through an unlawful search, the Court has discretion as to whether that evidence can be allowed. Consider the R v Keen case that involved finding Cannabis in a parked car. In this case, the Court found that the search of the car was unlawful, because it was not authorised under the Police Powers and Responsibilities Act allowing for the searching of ‘occupied’ vehicles because Mr Keen and Mr Hetet, were not passengers of the vehicle when it was searched by Police.
Snr Constable Troy Anthony Cameron and Snr Constable Christopher Michael Hurtz identified themselves and asked the applicant and Mr Hetet for their names. Mr Hetet said that he was the driver of the Barina. SC Cameron returned to the police car and conducted a name check with Toowoomba Police Communications. He returned to the Barina and searched the vehicle. During the search the officer found a small plastic tub that contained what appeared to be a small amount of cannabis, a small tub that contained what appeared to be a pink crystalline substance, a plastic water pipe and a large sports bag in the boot. Inside the bag he located two large vacuum sealed plastic bags that contained what appeared to be cannabis. Mr Hetet said the sports bag was his. Hetet said that the cannabis was his and that he put it in the bag. SC Cameron and SC Hurtz were brought into the operation “Kilo Agitator” by Det Snr Sgt Robb as a deliberate strategy. The plan was to make a “traffic” interception of the vehicle carrying the applicant. They would conduct a search of the vehicle and if, as believed, the vehicle contained dangerous drugs, the applicant would be arrested, and the dangerous drugs confiscated without alerting the applicant and others involved of the operation or presence of covert surveillance or to the extent of police knowledge about their business. Section 31 - Searching vehicles without warrant(1) A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following— (a) stop a vehicle.(b) detain a vehicle and the occupants of the vehicle;(c) search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.
The Court on this occasion allowed the evidence despite finding the search unlawful because the evidence was considered in the public interest to admit, as it was vital to the prosecution of Keen, the seriousness nature of the offences supporting the public interest discretionary rule and, the unlawfulness of the search was not deliberate and arose by mistake. In the particular circumstances of the present case, the public interest in bringing a wrongdoer to justice and the factors favouring admission of the evidence outweigh the factors supporting its exclusion.
Although the evidence was allowed in this case, there are other very similar cases involving the searches of motor vehicles, where the defendant was not a passenger of the vehicle, and the evidence was not admissible.
R v Versac In R v Versac it was conceded by the prosecution that s 31 did not authorise a search of a parked car by police without warrant. In that case, the police officer observed the applicant at a court hearing and suspected that the applicant may have been under the influence of heroin. The applicant was approached and gave responses to questions which the police officer considered evasive. The applicant said that he had been dropped off at court by a friend and denied that he possessed a motor vehicle however he had a set of keys in his hand. The police officer formed the belief that the vehicle which the keys would open would contain illicit drugs such as heroin. The suspicion that the vehicle contained drugs was founded on the applicant’s history, his demeanour, his possession of the keys and his evasive answers. Police subsequently used the electronic remote on the keys to locate the vehicle in a nearby car park. However, it appears that s 31 did not apply on this occasion because the applicant was not an occupant of the vehicle at the relevant time and the vehicle, and its occupants were not detained so as to authorise any search. R v Pohl Further, in R v Pohl it was conceded by the prosecution that s 31 did not authorise the search in another similar case. The applicant in that case was arrested for supplying a dangerous drug at a hotel.
The arrest was based on an anonymous tip that a man who the applicant was accompanying outside the hotel was intending to buy unlawful dangerous drugs at the hotel. Upon questioning, the applicant stated to police that he lived at a certain location and had walked to the hotel. The police knew from a review of CCTV footage that he had not walked to the hotel. Due to the false story, and the fact that no drugs had been found on the persons involved, the police formed the view that the drugs were in the vehicle in which the applicant had arrived, visible on the CCTV footage.
Using a remote keypad found in the applicant’s pocket, police located and unlocked a vehicle in the car park, which was searched. Again, the case seems to have proceeded on the basis that the applicant was not an occupant at the relevant time and the vehicle, and its occupants were not detained so as to authorise the search.
R v Jaudzems
In R v Jaudzemz , a question arose as to whether there were grounds to reasonably suspect, dangerous drugs were in a vehicle searched by Police. In that case, the Court held that officers did have a reasonable suspicion to search the vehicle. The vehicle, driven by the applicant was pulled over for a random breath test. While that was occurring, one of the police officers involved had a radio conversation with the Townsville area police communications. Communications informed him that an intelligence submission, stated that the driver of the vehicle may be involved in the supply and trafficking of amphetamines in the Cairns area. A further statement was made shortly afterwards that the driver was a ‘large scale’ supplier of ecstasy in Cairns and that the informant who had provided that information to police had been open and honest regarding the informant’s involvement. Cairns Supreme Court Justice Henry observed that there is a “…well-established principle regarding reasonable suspicion that there must exist some factual basis to reasonably ground the suspicion, but it is unnecessary that there exists proof of the fact reasonably suspected.” His Honour continued that:“The existence of apparently reliable information that one of four men in a vehicle pulled over at Ayr was an active drug trafficker in Cairns gave Constable F grounds that were reasonable in harbouring his suspicion unlawful dangerous drugs may have been in the vehicle.” In my view, on the balance of probabilities, there were grounds that were reasonable in the circumstances for SC Cameron, to reasonably suspect that there was something in the Barina that may have been a dangerous drug. SC Cameron had the required suspicion, and that suspicion was reasonable. Right to Silence
I recently engaged in a project known as LawToks. Short videos were created by Drama students from Central Queensland University, recreating everyday situations involving young people and Police. The aim of this project was to inform young people as to their rights and responsibilities when dealing with Police, carefully balancing the need to cooperate with the right not to speak without a care person or guardian present. One of these videos relates to Police questioning and your responsibility to provide your name and address if required by Police.
Rice v Connolly
The precedent and/or rule established in Rice v Connolly holds that there is no strict legal duty, to assist a Police officer prior to any arrest or caution. An individual is not obligated to provide any details to the Police, accompany them to any location such as a Police station or assist them with any enquiries.
Rice was spotted by an officer acting ‘suspiciously’ in an area known for a high rate of break-ins, some of which had occurred on the very same night. Originally, Rice was charged and convicted of ‘wilfully obstructing Police’ for failing to provide Police with his full name, his address and refusing to accompany the Police officer to a ‘police box’. The Officer told the Court Rice was sarcastic however, there was no suggestion that anything he provided to the Officer was false.
Lord Parker CJ allowed an appeal in this case and found:
“In my judgment there is is all the difference in the world between deliberately telling a false story something which on no view a citizen has the right to do and preserving silence or refusing to answer something which he has every right to do”
What this meant was that, if Rice had deliberately lied to the Officer on this occasion, it may very well have been considered as obstructing the Officer but because he simply refused to say anything at all, it was his right to do so. Rice was found not guilty on appeal.
Further, in considering police powers and responsibilities to question an individual at common law, Goff LJ, in Collins v Wilcock states plainly: “A Police officer has no power to require a man to answer him”
In 1975, the Australian Law reform Commission suggested Police should have powers to obtain particulars where there is reasonable suspicion however, if it transpires that the individual cannot help the Police, or where it cannot be proven that the individual does not actually have that information, they cannot be found guilty of an offence . Individuals will only be found guilty for an offence where it is proved beyond a reasonable doubt that they could help the Police and do not. Section 791 - Offence to contravene direction or requirement of police officer (1) This section applies if a person is given a requirement or direction under this Act and no other penalty is expressly provided for a contravention of the requirement or direction.
(2) A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse.
The Requirement to State Name and Address
Section 40 and 41 of the Police Powers and Responsibilities Act, provide for the requirment to state an individuals name and address and the prescribed circumstances under which, an individual MUST provide this information. Section 40 - Person may be required to state name and address (1) A police officer may require a person to state the person’s correct name and address in prescribed circumstances;(2) Also, the police officer may require the person to give evidence of the correctness of the stated name and address if, in the circumstances, it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated name or address or to otherwise be able to give the evidence. (3) A person does not commit an offence against section 791 if the person was required by a police officer to state the person’s name and address and the person is not proved; (a) for section 41 (a) or (b), to have committed the offence; or (b) for section 41 (f), to be the person named in the warrant, summons, order or court document; or (c) for section 41 (h), to have been involved or to be about to be involved in domestic violence or associated domestic violence; or (d) for section 41 (i) or (j), to have been able to help in the investigation. (4) Also, a person does not commit an offence against section 791 if;(a) the person was required by a police officer to state the person’s name and address for enforcing the Tobacco and Other Smoking Products Act 1998 in relation to the supply of a smoking product to a child; and (b) no-one is proved to have committed an offence against that Act. (5) In this section, "address" means current place of residence. Section 41 - Prescribed circumstances for requiring name and address The prescribed circumstances for requiring a person to state the person’s name and address are as follows;(a) a police officer finds the person committing an offence; (b) a police officer officer reasonably suspects the person has committed an offence, including an extradition offence; (c) a police officer is about to take;(i) the person’s identifying particulars under an identifying particulars notice or an order of a court made under section 471 or 514 ; or (ii) a DNA sample from the person under a DNA sample notice or an order made under section 484 , 485 , 488 or 514 ; (d) an authorised examiner is about to perform a non-medical examination under a non-medical examination notice or under section 514 ; (e) a police officer is about to give, is giving, or has given a person a noise abatement direction, an initial nuisance direction or a final nuisance direction; (f) a police officer is attempting to enforce a warrant, forensic procedure order or registered corresponding forensic procedure order or serve on a person— (i) a forensic procedure order or registered corresponding forensic procedure order; or (ii) a summons; or (iii) another court document; (g) a police officer officer reasonably believes obtaining the person’s name and address is necessary for the administration or enforcement of an Act prescribed under a regulation for this section; (h) a police officer officer reasonably suspects the person has been or is about to be involved in domestic violence or associated domestic violence; (i) a police officer officer reasonably suspects the person may be able to help in the investigation of— (i) domestic violence or associated domestic violence; or (ii) a relevant vehicle incident; (j) a police officer officer reasonably suspects the person may be able to help in the investigation of an alleged indictable offence because the person was near the place where the alleged offence happened before, when, or soon after it happened; (k) the person is the person in control of a vehicle that is stationary on a road or has been stopped under section 60 ; (l) under chapter 17, a qualified person for performing a forensic procedure is about to perform the forensic procedure on the person; (m) a police officer is about to give, is giving, or has given a person a police banning notice under chapter 19, part 5A; (n) a police officer is about to give, is giving, or has given a person any of the following under the Peace and Good Behaviour Act 1982;(i) a public safety order; (ii) a restricted premises order; (iii) a fortification removal order; (o) a police officer reasonably suspects a person has consorted, is consorting, or is likely to consort with 1 or more recognised offenders.
Again, we apply the objective test from George v Rockett when determining whether is a reasonable suspicion. Most of the language provided in the above sections of the Police Powers and Responsibilities Act , includes ‘reasonable suspicion’ and ‘reasonably suspects’.
Safeguards For Oral Directions
Where oral directions are to be given by an officer, there are certain responsibilities Police must follow such as; telling the individual that they could be charged with an offence for failing to follow a lawful direction and allowing the individual to adequately explain what they are doing and must give the individual reasonable time to comply. Section 633 - Safeguards for oral directions or requirements (1) This section applies if a police officer gives someone an oral direction or makes an oral requirement under this Act. (2) If the person fails to comply with the direction or requirement, a police officer must, if practicable, warn the person;(a) it is an offence to fail to comply with the direction or requirement, unless the person has a reasonable excuse; and (b) the person may be arrested for the offence. (3) The police officer must give the person a further reasonable opportunity to comply with the direction or requirement.
These provisions have been placed into the Act in order to safeguard individuals against unlawful conduct by the Police and prevent any arbitrary use of Police powers against private citizens. Of course, when we look at Section 633, Sub-section two , the reference to ‘if practicable’ provides officers with some defence, when a warning has not been given however, a subjective test will apply to all facts and evidence. The below section applies where a person is committing or has committed a summary offence. Section 634 - Safeguards for declared offences under Summary Offences Act 2005 (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;(a) if the offence involves the person’s presence at a place, why the person was at the place; or (b) if the offence involves entering a place, why the person entered the place; or (c) if the offence involves any of the following, why the person did the relevant thing;(i) parachuting or hang-gliding onto a building or structure; (ii) Base-jumping or hang-gliding from a building or structure; (iii) climbing up or down the outside of a building or a structure; (iv) abseiling from a building or structure; or (d) if the offence involves possession of a graffiti instrument or an implement, why the person was in possession of the graffiti instrument or implement at the relevant time; or (e) if the offence involves possession of a thing that is reasonably suspected of having been stolen or unlawfully obtained—how the person came to have possession of the thing. (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; Example for paragraph (c)— It may not be reasonably practicable to give the person a reasonable opportunity to give an explanation because of the person’s conduct, for example, the person may be struggling or speaking loudly without stopping. 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 .
There are also provisions within the Act , for Police to provide their details, especially in circumstance where Police are not in uniform and cannot be clearly identified as Police. Section 637 - Supplying police officer’s details (1) This section applies if a police officer;(a) searches or arrests a person; or (b) searches a vehicle; or (c) searches a place, other than a public place; or (d) seizes any property; or (e) stops or detains a person or vehicle; or (f) requires a person to state his or her name and address; or (g) gives to a person a direction under section 48 or 177 ; or (h) enters a place to make an inquiry or investigation or to serve a document; or (i) exercises a power as a public official. (2) The police officer must, as soon as reasonably practicable, inform the person the subject of the power of the following;(a) if the police officer is not in uniform;(b) that he or she is a police officer; and (iii) his or her name, rank and station; (c) if the police officer is in uniform—his or her name, rank and station. (3) If the police officer is not in uniform, the police officer must also produce for inspection his or her identity card. (4) If the police officer is searching a person, vehicle or place, other than under a search warrant, the police officer must state the purpose of the search and the reason for seizing any property. (5) If 2 or more police officers are searching the vehicle or place, only the senior police officer present is required to comply with subsections (2) to (4). (6) However, if a person asks another police officer for the information mentioned in subsection (2) or to produce an identity card, the police officer must give to the person the information requested or produce the identity card.
Move-on Powers
Prior to 2006, there have been incremental expansions in regard to move-on powers. These powers were first introduced in 1997 under the first Police Powers and Responsibilities Act and applied to certain types of stores, train stations and other places declared by Local Governments as ‘Move-on’ zones. In 2000 , they were expanded to include larger venues such as racing venues and malls however, these types of places included a large number of areas regularly visited by indigenous Australians and were seen as racially discriminative.
Move-on powers seemed to disproportionately target Indigenous Australian and deal with ‘indigenous problems’ such as drinking in public and sitting in thorough fares in large groups however, these activities were/are activities which indigenous Australians would regularly do within their own homes, and it was argued that they deserved rights to do these things in public/on country.
The Move-on powers were enforced state-wide in Queensland in 2006 but only apply to minor forms of disorder. In New South Wales however, move-on orders were used for much more serious offences. In 1988, Police used move-on powers in areas known as drug hotspots in order to prevent individuals purchasing drugs although these powers have since been repealed, s197 of the Law Enforcement Responsibilities Act currently provides for move-on powers in NSW.
A review conducted by the Crime and Misconduct Commission in 2010 over a two-year period found that, young males under the age of 13 are more likely to be given a move-on direction with some given to six-year old’s and that 42% of all move-on directions were given to indigenous Australians, making them 20x more likely to receive a move-on direction.
A move-on direction can be issue because of a person’s behaviour and can also apply to the mere presence of a person. Sections 633 and 637 of the Act , would also apply when an officer issues a move-on direction.
If Police contravene any of the provisions under the Act, their actions could be considered unlawful, and they may face prosecution. In both Rowe v Kemper and Whitelaw v O’Sullivan , Police had proceedings brought against them for what was considered unlawful conduct and the charges against Rowe and Whitelaw were dismissed. Section 46 - When power applies to behaviour (1) A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s behaviour is or has been— (a) causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or (b) interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or (c) disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place; or (d) disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place. (2) If the regulated place is a public place, other than a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s behaviour has or had the effect mentioned in subsection (1)(a), (b), (c) or (d) in the part of the public place at or near where the person then is. (2A) If the regulated place is a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s behaviour has or had the effect mentioned in subsection (1)(a), (b), (c) or (d) in any public place located in the safe night precinct. (3) Subsection(1)(b) applies to premises used for trade or business only if the occupier of the premises complains about the person’s behaviour. (4) However, subsections(1)(b) and (3) do not limit subsection (1)(a), (c) and (d). (5) This part also applies to a person in a regulated place if a police officer reasonably suspects that, because of the person’s behaviour, the person is soliciting for prostitution. (6) For this part, the person’s behaviour is a relevant act. Section 47 - When Power Applies to a Person’s Presence (1) A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s presence is or has been;(a) causing anxiety to a person entering, at, or leaving the place, reasonably arising in all the circumstances; or (b) interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or (c) disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place. (2) If the regulated place is a public place, other than a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s presence has or had the effect mentioned in subsection (1) (a), (b) or (c) in the part of the public place at or near where the person then is. (2A) If the regulated place is a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the place only if the person’s presence has or had the effect mentioned in subsection (1) (a), (b) or (c) in any public place located in the safe night precinct. (3) Subsection (1) (b) applies to premises used for trade or business only if the occupier of the premises complains about the person’s presence. (4) However, subsections (1) (b) and (3) do not limit subsection (1) (a) and (c).(5) For this part, the person’s presence is a "relevant act".
Rowe v Kemper The Rowe v Kemper case highlights the difficulty police officers often face in determining if, when, and how to exercise their "move-on" power under the Police Powers and Responsibilities Act 2000 (Qld) ("the Act") in respect of members of the public behaving in a non-conforming manner. Rowe, a 65-year-old homeless man was washing his clothes in a public toilet block in the Queens Street Mall, Brisbane when a Council cleaner Mr Demane, approached Mr Rowe and asked him to leave so that he could clean the facility. Mr Rowe attempted to negotiate with Mr Demane about staying longer however, there began an argument, and the Police were called.
Four Police officers arrived and told Mr Rowe he would need to leave however, Mr Rowe became defiant and told the Police he was not doing anything wrong and did not have to leave, so Police issued him with a formal direction to leave before arresting him and charging him with failure to follow a Police direction and Assault/Obstruct Police in the performance of their duties. Mr Rowe was originally found guilty of an offence against s 445(2) of the Act (contravening a police direction given under the Act) and of an offence against s 444(1) of the Act (obstructing the respondent, Constable Kemper, in the performance of his duties) however, Rowe was acquitted of both offences on appeal with the Court determining the arrest unlawful. Interestingly, Police were of the opinion Mr Rowe was going to assault them, informing their decision to arrest him without giving him the opportunity to comply with the direction . The Police told the Court they formed the view Mr Rowe would assault them as he was being verbally defiant, but the Court held that any reasonable suspicion he was going to assault them, could only be based on past and present actions, not those in the future and Mr Rowe had not yet shown any signs of aggression.
The Court also held that a move-on direction was unnecessary and that if it was necessary for Mr Demane to clean the toilets without Mr Rowe being present, that it was only necessary to prevent Mr Rowe from entering whilst cleaning was being conducted and not the full 8 hours as per the direction.
Justice Holmes found that Mr Rowe did not contravene the direction of Police because he was only warned he could be arrested, and not that failure to comply constituted an offence whilst Justice McKenzie also found, that they did not give him a reason to comply and that, as a 65-year-old man, he needed time to comply and: “Police officers whose lot is to maintain good order and public safety in public places face a multitude of situations which often develop suddenly and have potentially unpredictable outcomes. Officers are required to make assessments, in real time, of the nature of the behaviour and how to respond to it so that good order is restored by means appropriate in the circumstances. Not infrequently, as in this case, the person whose conduct attracts attention will be disposed to be unco-operative when common-sense would suggest that a degree of give and take would avoid an escalated confrontation”. Justice McMurdo P held that: “Constable Kemper reacted disproportionately to Mr Rowe's argumentative, non-conforming behaviour in giving him the direction in unreasonably broad terms. His direction to Mr Rowe under section 39 , was not reasonable in the circumstances and was not a "direction under this Act" in terms of s 445(1) . He also acted unreasonably in the circumstances in not complying with, at least, s 391(3) (giving a reasonable opportunity to comply with the direction when it was practicable to do so) before purporting to arrest Mr Rowe under s 445(2) . It was unreasonable for Constable Kemper to have suspected that Mr Rowe had committed any offence against s 445(2) for contravening his direction so soon after he had given it.” This case not only highlights the importance of Police responsibilities when issuing move-on orders to individuals but also, making other directions as well. If the Police issue a direction, it must be done so within their powers given to them under the Act .
Tucs v Manley It was held in this case that a police officer may exercise the power under section 39 of the Act to give "any direction that is reasonable in the circumstances" to a person "doing a relevant act" with a "relevant act" including, where a police officer reasonably suspects a person's behaviour to fall within one of the behaviours described in section 37(1)(a) to (d) .
This follows from the clear terms of s 37(1) that, before relying on s 37(1) to exercise the "move on" power under section 39 , the police officer must personally form the suspicion that the person's behaviour is or has been within one of the categories of behaviour described in s 37(1)(a) to (d) and that suspicion must be objectively reasonable. That is, ‘it must be based on facts which would create a reasonable suspicion in the mind of a reasonable person’.
Veivers v Roberts
In Veivers v Roberts; ex parte Veivers , the Court held that even where a person was arrested but later acquitted of an offence against the provisions of the Vagrants, Gaming and Other Offences Act, the person could still be convicted of any reactive offence such as resisting the arresting police officer in the execution of his duty under section 59 of the Police Act 1937-1978 or obstruct Police if, at the time of the arrest, the police officer had reasonable grounds to believe the offence had been committed.
What this means is that although an individual may be found not guilty of an offence for which they are arrested and/or the arrest may be considered u lawful, that individual could still be liable for other offences such evading police or assault etc.
Arrest Powers
ICPCR article 9 (1) provides that, ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with procedure as are established by law’.
ICPCR article 9 (2) provides that, anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him’.
This rule is also established at common law and sections 391 and 392 of the PPRA.
Section 391 - Information to be given to arrested person(1) A police officer who arrests a person, whether or not under a warrant, must, as soon as is reasonably practicable after the arrest, inform the person that the person is under arrest and of the nature of the offence for which the person is arrested.(2) A police officer who arrests a person with a warrant must inform the person that the person is under arrest and of the nature of the warrant.(3) Before the person is released from police custody, a police officer must give the person, in writing;(a) the name, rank and station of the arresting officer; and(b) if the person was arrested under section 365A(1), the name, rank and station of the instructing officer.Section 392 - Parent and particular chief executives to be advised of arrest or service of notice to appear(1) A police officer who arrests a child must promptly advise the persons mentioned in subsection (3) of the arrest and whereabouts of the child.(2) A police officer who has served a notice to appear on a child must promptly advise the persons mentioned in subsection (3) of the service of the notice to appear.(3) The persons to be notified are;(a) a parent of the child, unless no parent of the child can be contacted after making all reasonable inquiries; and(b) the chief executive (communities) or a person, nominated by that chief executive for the purpose, who holds an office within the department for which the chief executive has responsibility; and(c) if the chief executive (child safety) has custody or guardianship of the child under the Child Protection Act 1999, that chief executive or a person, nominated by that chief executive for the purpose, who holds an office in the department for which the chief executive has responsibility.(4) If no parent of the child can be contacted after making all reasonable inquiries, a police officer must make a record of the inquiries made.(5) Subsections (1), (2) and (4) do not apply in relation to a child if a police officer believes on reasonable grounds that the child is an adult.(6) In deciding whether the police officer had the reasonable grounds, a court may have regard to the child’s apparent age and the circumstances of the arrest or service of the notice.(7) In this section parent;(a) means a parent within the meaning of the Youth Justice Act 1992, schedule 4; and(b) includes a person who is apparently a parent of a child.
Wheatley v Lodge
The Wheatley case considered whether the police had sufficiently informed a deaf man, under the influence of alcohol that he was under arrest.
In this case Lodge, a deaf man driving a motor vehicle had been stopped by police and submitted to a roadside breath test. The breath test indicated that Lodge was under the influence of alcohol, and he was placed under arrest. The Court later considered whether the arrest was lawful given that Mr Lodge, being deaf, did not understand at the time that he was under arrest.
It was considered whether the officer took reasonable steps to communicate with the man using spoken words and actions and that under all of the circumstances, the arrest was found to be lawful because the officers explanation was sufficient, concluding that even if a defendant was not aware that they were being arrested due to deafness or an inability to understand English, it was not the fault of the officer and the Court would only consider whether the officer took reasonable steps to communicate.
Knowing whether or not an individual is lawfully under arrest is important in cases where it is alleged the individual either obstructed police, resisted arrest or evaded police altogether. Further though, it is extremely important that individuals know if they are or are not under arrest as the police have an obligation to provide safeguards if an individual is under arrest. These safeguards do not apply when the individual is not under arrest.
If the legality of the arrest is questioned, a court must consider whether an arrest occurred and when a court is to determines whether evidence is admitted or not, it is also relevant.
When Does an Arrest Occur?
In Lavery , the Court considered further, whether an individual was at liberty to move and whether or not they were under arrest, concluding that; ‘A person is arrested when police make it plain to him or her that he or she is not free to leave’ .
In Michaels v the Queen , the Court held that an arrest occurred when an arrested person has been; ‘Deprived of liberty to go where he or she pleases .’
Eatts v Dawson (1990) 21 FCR 166 The case of Eatts v Dawson considered whether the death of Mr Gundy (mentioned earlier ), should be investigated by the Royal Commission of deaths in custody. The New South Wales Government submitted that the case fell within the terms of reference of the Royal Commissioner as a death whilst in police custody, adding that "in a real sense" Mr Gundy and every other occupant of the house at 193 Sydenham Road was in the custody of police officers at the relevant time. No submissions to the contrary were offered by counsel for the Police Association of New South Wales and the matter was added to the list of deaths for investigation by the Commission. the Court was asked to consider the definition of ‘custody’ and isolated then, three dictionary definitions of “Custody”: The Oxford English Dictionary defines "custody" as;
1. safe-keeping, protection, defence; charge, care, guardianship ... 2. the keeping of the officers of justice (for some presumed offence against the law); confinement, imprisonment, durance.
In the Macquarie Dictionary, custody is defined as follows;
1. keeping; guardianship; care: in the custody of her father.2. the keeping or charge of officers of the law: the car was held in the custody of the police3. imprisonment: he was taken into custody.
Further, in Webster's New International Dictionary (2nd ed), the three meanings given for "custody" are;1. a keeping or guarding; care, watch, inspection, for keeping, preservation or security.2. judicial or penal safe keeping; control of a thing or person with such actual or constructive possession as fulfils the purpose of the law or duty requiring it; specif., as to persons, imprisonment, durance; as to things, charge.3. state of being guarded and watched to prevent escape.
Is an Invitation to Accompany Police Considered an Arrest?
R v Inwood One of the most important aspects of arresting an individual is indicating to the individual that they are under arrest. In R v Inwood the Court heard that Inwood attended a police station voluntarily, to answer questions regarding a theft. At the conclusion of the questioning, an officer informed Inwood that he would be charged with theft, and began to take his fingerprints without informing him that he was being placed under arrest. Inwood then attempted to leave the police station and assaulted a number of police officers in the process. On appeal against his conviction, the Court considered whether there was infact a lawful arrest prior to, Inwood’s attempts to leave the police station. The Court of Appeal ultimately held, that it was not clearly communicated to Inwood that he was under arrest. In this case, the Court established that there is no magical formula resolving the issue of whether or not an arrest has occurred, all circumstances must be considered and specifically, the Court must consider whether the individual was able to exercise their right to leave.
The Judge stated;“It all depends on the circumstances of any particular case whether in fact it has been shown that a man has been arrested, and the court considers it unwise to say that there should be any particular formula followed. No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man. ” Alderson v Booth
This Alderson v Booth case considered an appeal by prosecution of an earlier judgment of a Court, that determined Mr Booth was not under arrest when providing a blood sample to the police and that the blood sample given whilst not under arrest, could not be relied upon as evidence of a drink driving offence.
Mr Booth was the driver of a vehicle involved in a motor vehicle accident with another vehicle and was questioned by officer Alderson, who required Booth to provide a specimen of breath. Booth complied with the direction and the test returned a positive reading. The constable informed the defendant of the result of the test and said: “I shall have to ask you to come to the police station for further tests.”
The defendant voluntarily accompanied the constable to a police station where he was given an opportunity to provide another specimen of breath returning a positive reading. The officer then required the defendant to provide a blood sample and the defendant agreed. Upon analysis, the sample of blood provided contained an amount of alcohol that exceeded the prescribed limit.
The justices were of opinion that when the defendant accompanied the constable to the police station, it was not made clear to him either physically or by word of mouth that he was under compulsion. They considered that compulsion was a necessary element of arrest, and they therefore did not regard the defendant as a person who had been arrested. As a consequence, they dismissed the appeal. Harris Case
The Harris case considered whether a fear of police should be considered when determining whether or not the individual was under arrest. The Court held that fear of police was not to be considered and all that mattered, was whether the police indicated the individual was under arrest.
O’Donaghue Case
O’donoghue considered circumstances where an individual thought they were under arrest and for that reason, followed an officer’s requests.
Polyukhovich v Commonwealth
In 1990, Ivan Polyukhovich, then seventy-three years old and residing in Adelaide became the first and only person arrested and charged under Australia’s War Crimes Act . Polyukhovich was accused of helping the Nazis, massacre nine hundred men, women and children in Ukraine.
Polyukhovich claimed that he did not have a choice which established what is now referred to as ‘the Polyukovich test ’. the test is to consider, ‘would a reasonable person think, they no longer have a choice? and would a reasonable person make that decision? confirming that all of the circumstances apply. After a nine-week trial, a jury found Ivan Polyukhovich not guilty. Trotter, Sutherland Jordan Case
Another case, that of Trotter, Sutherland Jordan considered whether the entering of a house by a number of officers indicated that an individual was under arrest. The Court held that in the circumstances it was reasonable to assume the individual was no longer free and that they were under arrest.
Byczho Case
The Byczho case considered whether the words ‘you must come with us’ indicated an individual was under arrest and no longer at liberty. The police officers in this case did not clearly indicate the individual was under arrest and did not say words to that effect however, the Court held that the words that were spoken by police were a direction.
Hatzinikolaou v Snape
This case again considers what constitutes an arrest. The Court considered whether the placing of a police officers hand on an individuals shoulder followed by the words ‘would you mind coming with us’, would indicate to a reasonable person, that they were under arrest.
Ultimately, an arrest can occur with words or actions. It is important to remember that an arrest, although authorised by the police, is an assault. If police do not follow the formalities and act within their powers and responsibilities it could be considered an unlawful arrest and an assault.
A Deprivation of Liberty Must Occur
The following cases considered further, the lawfulness of arrest, whether arrest was justified under the circumstances and whether the police acted within their powers, satisfying the formalities.
O’Brien v O’Brien (1992) 80 NTR 1
The Court considered whether an individual once under arrest, could be charged with escaping. The circumstances of this case were that an individual who had been pulled over by police for a breath test ran away from police, after first being given permission to exit the vehicle and urinate on a tree.
The defendant in this case claimed that as he was free to urinate and had permission to exit the vehicle and move freely that he was not under arrest. After considering the circumstances however, the Court decided that he had been placed under arrest and was under arrest at the time he was allowed to urinate on the tree.
Whitelaw v O’Sullivan
As mentioned previously, Whitelaw v O’Sullivan considered the excessive use of force by police officers and whether Mr O’Sullivan was lawfully under arrest when the excessive use of force occurred.
Bulsey & Anor v State of Queensland
The Bulsey case considered whether there was a need for a formula when determining who or when an individual should be placed under arrest, and whether an arresting officer need hold reasonable suspicion that the individual under arrest committed an offence. Early on the morning of 27 November 2004, police officers and six armed members of the “Special Emergency Response Team” wearing black helmets and masks, forcibly entered the home of Bulsey, took him from his bed, placed him on the floor, handcuffed him, and dragged him out to the street, before transporting him to Townsville. In Townsville, He was held in custody and questioned, charged with unlawful assembly, and remanded in custody. Police subsequently withdrew that charge and instead charged him with riotous assembly and destruction of a building. In the subsequent committal proceedings, the police ultimately conceded that it did not have a case against him, and he was released. Prior to the arrest, Mr Wotton and Mr Bulsey made emotional statements critical of police, regarding the recent death in custody of a Palm Island man, Mr Doomadgee after the Palm Island Chairperson disclosed a medical opinion, that Mr Doomadgee died from internal bleeding, caused by a rupture of his liver as a consequence of a compressive force applied by police. Mr Wotton accused Senior Sergeant Hurley of murdering Mr Doomadgee and a riot broke out resulting in the burning down of the police station. Mr Bulsey unsuccessfully in the first instance, sued the State of Queensland for damages relating to the assault and unlawful imprisonment with the Court accepting “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 ’, and that “it is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power ”. However, during an appeal the Court determined that Detective Miles, who was found to hold the suspicion required by that provision, did not arrest Mr Bulsey and the police officer who did arrest Mr Bulsey was not found to hold the required suspicion and Mr Bulsey was awarded more than 165,000 in damages. Detective Miles was stationed in Townsville when he decided that Mr Bulsey should be arrested and remained there when he made orders for other police officers to make the arrest on Palm Island. Atkinson J stated; “I wish to add that the treatment of the appellants breached their most fundamental right, the right to personal liberty which is the most basic and fundamental of the human rights recognised by the common law. ” And;‘Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities’. The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. ” Concluding that;“The appellants in this case were not treated as one might expect in a civilised society governed by the rule of law and it is appropriate that they should be adequately compensated for the grievous wrong done to them .” Reg v Galvin
Reg v Galvin considered decisions relating to a charge of assaulting police during the execution of their duties. In the earlier case of Reg. v. Galvin the Court held that in order to substantiate the charge, it was sufficient enough for the Crown to prove an assault upon a person who was proved to have been at the time of the assault, a member of the police force then acting in the due execution of his duty and that the prosecution need not prove the defendant knew they were an officer performing their duty.
The decision conceded the right of a person charged with such an offence to exculpate himself by establishing "on the balance of probabilities that he acted reasonably in the bona fide belief, based on reasonable grounds, that the police officer was in fact unlawfully assaulting or otherwise interfering with him and that, had the facts been as the accused supposed them to be, his own actions would have been lawful and innocent".
In the second Galvin Case however, a Court of five judges was especially assembled to reconsider the earlier decision and a majority of the Court rejected the view which had been taken earlier and that the prosecution must establish the intent, and that they must intend to assault and must have intended to assault an officer in the execution of his duty, as these were important elements.
The Queen v Reynhoudt
In the Queen v Reynhoudt it was further established that an individual placed under arrest, does not need to know that it is a police officer making the arrest. Arrests can be made by members of the public and even security guards.
The defendant on this occasion had been charged with assaulting a police officer in the execution of the officer’s duty and the Court directed the jury to consider the judgement and rule established in the first Galvin case which had since been overturned.
The majority of the High Court allowed an appeal by the Attorney-General and approved the following statement: “The charge was not assaulting them knowing them to be in execution of their duty but assaulting them being in the execution of their duty.”
In R v K it was held; “A police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to case to be acting therein.” If a police officer is exceeding his duty, resistance to him is not an assault. When a police officer illegally arrests a person, he is not engaged in the discharge of his duties. It is sufficient for the police officer to touch the person to be arrested and at the same time tell him that he is under arrest and where possible state the act for which arrest is made. If the defendant is touched there is an arrest even though the defendant is not grasped and even though the defendant is stronger than the police officer arresting him and succeeds in making off. Trobridge v Hardy
The Hardy case is another example of an individual taking civil action against a police officer to recover damages for assault, malicious arrest and wrongful imprisonment.
Trobridge is a taxi driver charged with refusing to give his name and address to the defendant, police officer Hardy. At the trial, there was a conflict between the Trobridge and Hardy’s evidence however, the Court accepted Trobridge’s evidence, supported by two witnesses.
Mr Trobridge was driving a taxi in Perth, hailed from the kerb by two passengers, stopped his car, and backed it towards them. As he opened the door for them Hardy, who was in plain clothes, approached. Thinking he wished to hire the taxi, the Trobridge said: "Excuse me, I am afraid these people hired the taxi first." Hardy replied: "Never mind about you Police here! What the hell are you doing here? You have no bloody right to be here."
Trobridge asked if he could take the passengers and was told that he would not be allowed. Hardy then demanded his name and address. Trobridge asked what he was being charged with and Hardy said, "Plying for hire", Trobridge then gave Hardy a business card with his details on it and began taking the details of the two passengers who witnessed the event.
Hardy then grabbed him by the shoulder and said: "How much longer are you going to be? The police are not going to wait all night for you." Trobridge said "I won't be a moment". Before Hardy "thumped him again severely on the shoulder” and said, "You are under arrest." "If you hesitate one moment, I will handcuff you."
He was then arrested and taken to the police station. The witnesses protested and wished to go to the police station in the cab, but Hardy refused to allow them to do so. He waved the business card in the air and said: "This doesn't mean a thing to me, nor what you people saw or heard We're not interested in bloody witnesses."
On arrival at the police station Trobridge was searched with considerable violence and was struck a severe blow on the neck. He was later released, charged with refusing to give his name and address.
Trobridge was found not guilty of failing to provide his name and address and the High Court ruled in his favour awarding damages. It may be necessary in a case in which the validity of arrest is an issue, to tell the jury that they can only be satisfied that the police officer was acting in the execution his duty if satisfied beyond a reasonable doubt that the arrest was lawful. If the police officer uses excessive force, he is not acting in the execution of his duty . When Can Police Arrest You for Questioning?
Police can only arrest an individual for questioning only if they are suspected of committing an indictable offence. Indictable offences are serious offences. If an individual is arrested without proof they are involved with an offence or know about an offence, the arrest may be considered unlawful.
How Long Can Police Hold You for Questioning?
Generally, the Police can hold you for a period of 8 hours before a request is made to a Magistrate for an extension. This 8-hour period allows 4 hours for questioning and a 4-hour period of arrest and processing. Any extension allowed by a Magistrate must not exceed 12 hours and must be reasonable. Reasonable periods are set out in s404
Extensions can be allowed when an individual is intoxicated or under the influence of a dangerous drug/alcohol. As previously mentioned, police must be satisfied that an individual is of a sound mind/able to understand the officer prior to any questioning. Section 403 - Initial period of detention for investigation or questioning 1) A police officer may detain a person for a reasonable time to investigate, or question the person about;(a) if the person is in custody following an arrest for an indictable offence; the offence for which the person was arrested; or (b) in any case, any indictable offence the person is suspected of having committed, whether or not the offence for which the person is in custody. (2) However, the person must not be detained under this part for more than 8 hours, unless the detention period is extended under this division. (3) If this part applies to the person because of section 398 (b) or (c) , the person must be returned to the watch-house or other place of custody as soon as reasonably practicable after the detention period ends. (4) In the 8 hours mentioned in subsection (2) (the "detention period" );(a) the person may be questioned for not more than 4 hours; and (b) the time out may be more than 4 hours. (c) The detention period starts when the person is;(d) arrested for the indictable offence; or (e) taken into police custody under a removal order; or (f) taken from a watch-house; or (g) otherwise in the company of a police officer at a watch-house, prison, or detention centre, for the purpose of questioning the person. Section 404 - What is a reasonable time to detain a person for questioning or investigation (1) The following must be taken into consideration when deciding what is a reasonable time to detain a person under section 403;(a) whether the person’s detention is necessary for the investigation of an indictable offence; (b) the number of indictable offences under investigation; (c) the seriousness and complexity of an indictable offence under investigation; (d) whether the person has indicated a willingness to make a statement or to answer questions; (e) the person’s age, physical capacity and condition, and mental capacity and condition; (f) for a person arrested—any time spent questioning the person before the arrest; (g) the need to delay or suspend questioning of the person for time out purposes. (2) If the person decides not to answer questions or not to continue answering questions, continuing the detention period may not be reasonable unless;(a) it is necessary to carry out further investigations; or (b) the person consents, or another authority requires the person, to participate in an investigative procedure.
Examples for subsection (2)(b);1 The person consents to taking part in an identification parade. 2 A magistrate orders a medical examination involving the person.
What Is Obscene and Indecent? In another guide (Police Powers and Responsibilities), I provided for the definition of ‘reasonable’ and in this guide, I intend to define ‘obscene’ and ‘indecent’ as it has been decided by our Courts. In R v Close, his Honour Fullagar J unravelled the concept of obscenity; “As soon as one reflects that the word ‘obscene’, as an ordinary English word, has nothing to do with corrupting or depraving susceptible people, and that it is used to describe things which are offensive to current standards of decency and not things which may induce sinful thoughts, it becomes plain, I think, that Cockburn CJ, in the passage quoted from Hicklin, was not propounding a logical definition of the word ‘obscene’, but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel. The tendency to deprave is not the characteristic which makes a publication obscene but is the characteristic which makes an obscene publication criminal.” Obscene Language Swearing has arguably become more acceptable now than ever before, with more and more Australians using foul language, even as terms of endearment however, when swearing in public you could be charged with a criminal offence. In Hortin v Rowbottom, Mulligan J remarked that;‘fuck’ isn’t necessarily obscene, and similarly for the word ‘cunt’.
In Romeyko v Samuels, Bray CJ said; “...in my view, it is equally erroneous to hold that the common four-letter words are necessarily indecent in every context...and hold to that they can never be indecent at all.”
His Honour in Dalton v Bartlett also said; “...I would not regard words like this as even offensive, if, though used in a public place, they are used in the course of a friendly conversation and in conversational tones with someone who takes no offence at them, and that whether they are used as intensives or expletives or in their literal significance.”
In all Australian jurisdictions, criminal laws prohibiting offensive conduct and language are not tied to causing harm to others or to property and can be prosecuted under very broad circumstances. Police will usually exercise their discretion when prosecuting for these offences however, we usually see these offences prosecuted accompanied with other types of offences such as resisting arrest etc. In the Courts, offensiveness is “objectively” determined. This means that the ‘reasonable’ test is often applied.
To warrant criminalisation, offenses usually need to constitute personally abusive insults, be addressed in a face-to-face manner to an individual specifically and the individual must be unable to avoid the insult. Horton v Rowbottom Horton v Rowbottom involved Police attending a property over an alleged domestic dispute where the accused kept repeating the word ‘fuck’. Police asked the accused to calm down and stop using the language and was arrested, charged under the Summary Offences Act and convicted when he refused. The matter was appealed, and the Supreme Court of South Australia held that the Magistrate wrongly concluded the word ‘fuck’ as indecent regardless of context and/or circumstances of use. Mullighan J reviewed the authorities dealing with indecency in other contexts and highlighted the difficulties in determining a; “Community standard of decency”. The cases revealed that any context and the audiences must be considered when determining offensiveness and, in this case, found that the words weren’t used in their primary sense rather, they were used as “intensives” or “expletives” in order to give emphasis to the message he was seeking to convey. Given the accused directed the language to persons well-known to him in the context of a family argument in an emotional state, Mullighan J further held that;‘Although such language was coarse and would be offensive to some sections of the community, such language was now commonly used in ordinary conversation by both men and women in many sections of the community, sometimes in its primary sense but more often in its secondary sense, without offending contemporary standards of decency’. Similarly in Western Australia, the Supreme Court overturned the conviction of Rodney Rude in the case of Keft v Fraser . On this occasion, Rodney Rude was arrested and charged for using the word ‘fuck’ in a public comedy performance. Public Place It is important for Courts to consider the contexts where offensive behaviour and language is used. Conduct and language engaged in at a football match or on a tennis or squash court may be acceptable, or, at least, unremarkable, but offensive if engaged in during a church service or a formal social event. Further, the offensive behaviour and language in private places may be considered less offensive than in public. E (A Child) v The Queen
In the case of E (A Child) v The Queen , a young person was charged with disorderly conduct and obscene language under Section 54 and 59 of the Police Act and initially convicted of the offences before successfully appealing the decision. The youth had been picked up by police for being out on the street late at night without a responsible adult and taken back to the watchhouse where the police planned to have the youth picked up by a responsible adult however, whilst in custody the youth, frustrated and distressed, challenged the authority of the police to hold him. In the course of that conversation with a female officer he said “I’m leaving. You have no right to hold me here. I want to fucking go”. His swearing led to a warning that he would be arrested for obscene language, which prompted the reply “You can get fucked” and “Fuck you”. The original Magistrate found the language to be obscene and he was convicted however, on appeal, White J held that; “The question of whether language is obscene must be determined according to community standards, not the standards of a particular witness”. Adding that; “The question of whether language was obscene must be understood in its context. The use of the word “fuck” as an expletive, where there were no sexual overtones or implications, was not obscene language”. The convictions also failed because the Court did not consider the watchhouse a “public place”. In this case, the accused was an Aboriginal youth who was resisting police authority to impose a curfew and to detain him without any proper legal authority and in the absence of any formal power to hold him, offensive language provided the police with a “holding charge” and a legal basis for exercising authority over the youth. The judgment seems to be a judicial attempt to place limits on the offence and prevent its overuse against young people and minorities.
Attempts by the police to suppress conduct they deem offensive have not always been successful. The courts have imposed some limits on the scope of offensiveness in cases where the conduct is obviously “political”. Ball v McIntyre Ball v McIntyre considers offensiveness in a political context. In this case, the police attempted to prevent an anti-Vietnam protest outside Parliament House in Canberra. Desmond Ball avoided arrest for some time through legal debate. Whilst he was negotiating with Police, he had the advantage of knowing what his legal rights were, now a Professor at the Australian National University he had climbed up a statue of George V and hung a placard that read “I will not fight in Vietnam”. The accused refused to remove the placard or climb down when requested by the police. When he eventually came down, he was arrested and prosecuted for behaving in an offensive manner in a public place under s 17(d) of the Police Offences Ordinance. (now see s 546A of the Crimes Act 1900 (ACT) . At the trial the police emphasised that neither the political nature of the demonstration nor the student’s refusal to obey their instructions had caused them offense. Rather the police testified that it was the accused’s act of climbing on a public monument and placing the sign that had caused the offense. This is another example where it seems only the police officers had been offended as there was no evidence that the act had caused any members of the public any offense or interfered with their enjoyment of this public place or statue.
Kerr J (later to become the Governor-General who sacked Prime Minister Gough Whitlam) held that to be offensive, the behaviour must be; “Calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”. By applying an objective test, the political context of the accused’s behaviour could be introduced as a relevant factor. As Kerr J acknowledged;
“The average man [or woman], the reasonable man [or woman], being present on such an occasion, would readily see that the defendant was engaged in a political demonstration. He [or she] would doubtless think that climbing on the pedestal and placing the placard on the statue was rather foolish and a misguided method of political protest, that it offended against the canons of good taste, that it was in that sense improper conduct, but I do not believe that the reasonable man [or woman] seeing such conduct to be truly political conduct, would have his [or her] feelings wounded or anger, resentment, disgust or outrage roused.”
And Further;
“I recognize that different minds may well come to different conclusions as to the reaction of the reasonable man [or woman] in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so-called reasonable man [or woman] is reasonably tolerant and understanding, and reasonably contemporary in his [or her] reactions.”
“An objective standard of “offensive conduct” which explicitly provides room for dissent appears to be more protective of political protest. It avoids the problems associated with breach of the peace, where the right to engage in peaceful and otherwise lawful conduct is held hostage to the subjective responses (however unreasonable) of a hostile audience. Under Kerr J’s definition, the political motives behind the accused’s words and conduct are relevant to determining offensiveness. In this sense, it may be viewed as an exception to the general rule that motive is irrelevant to the criminal law…” Most individuals whose conduct is questioned by Police are not in a position to argue whether or not their conduct constitutes an offence although from personal experience, the Police can become even more determined to place an individual under arrest when they become argumentative or assertive regarding their rights with Police. Any “knowledge of rights” can also be regarded by Police as evidence of previous contact with police . In many respects Ball v McIntyre is an exceptional case. It stands in stark contrast to the approach taken by the English courts where the question of offense is regarded exclusively as a matter of fact for the tribunal. Brutus v Cozens In Brutus v Cozens, the accused attended a tennis match at Wimbledon, disrupting the match by throwing anti-apartheid leaflets around the court (one of the players was South African). The incident lasted two to three minutes before he left the court voluntarily. He was later charged with using “threatening, abusive or insulting” words or behaviour likely to cause a breach of the peace under s 5 of the Public Order Act . The magistrate dismissed the charge on the ground that the accused’s conduct was not “insulting”. The prosecution appealed to the Divisional Court, which held that it could be insulting and sent the matter back to the magistrate however, the accused then appealed to the House of Lords.
This case allowed the Lords an opportunity to consider the meaning of the phrase “insulting words or conduct”. The court held unanimously that the determination of whether words or conduct was “insulting” is a question of fact for the tribunal. Lord Reid pointed out; “In every case, the proper construction of a statute is a question of law for the courts. For this offence, Parliament intended that the words used should be given their ordinary meaning "It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of English language cover or apply to the facts which have been proved". Lord Reid established a new definition or test, not dissimilar to the definition of offensive conduct offered by Kerr J in Ball v McIntyre . Lord Reid pointed out that the qualifying adjectives; “threatening, abusive or insulting” Had been employed by Parliament to define the limits of free speech. Conduct would not be caught by the section, provided that a person’s words or behaviour did not transgress these limits, even though it posed some threat of disorder. In rejecting the definition proposed by the Divisional Court, Lord Reid stated;“There can be no definition. But an ordinary sensible man knows an insult when he [or she] sees or hears it”. He later stated;“Insulting means insulting and nothing else”. The Over-Representation of Indigenous Persons
There has been increasing awareness that the use of minor public order offences, such as offensive conduct and language, significantly contribute to the high rates of arrest and prosecution of Indigenous persons. Although the arrest rate for offensive conduct and language has been declining overall, an empirical study in New South Wales has established that minor public order offences continue to have a disproportionate impact on individuals from Indigenous backgrounds: R Jochelson, “Aborigines and Public Order Legislation in New South Wales” (1997) Crime and Justice Bulletin No 34 . The study revealed that Aboriginal persons continue to be grossly over-represented among arrests for offensive language and conduct offences, and that there was a positive and statistically significant correlation between areas with higher proportions of Aboriginal residents and areas with higher court appearance rates for offensive conduct and language. I covered the over-representation of indigenous Australians further in my submission to the Queensland Government Community Support and Services Committee: Inquiry into the decriminalisation of Certain Public Offences recently and was asked to speak directly to the Committee at a public hearing held in Cairns. Resist Arrest and Obstruct Police are commonly paired with offences relating to failure to move-along and public nuisance offences.
The importance of context was again emphasised in Saunders v Herold where the accused, an Aboriginal man, and his friends were asked to leave the Canberra Workers Club, which they did. Outside, the accused was approached by police, and was alleged to have said “Why don’t you cunts just fuck off and leave us alone?” His conviction for offensive conduct was quashed by Higgins J. Burns v Seagrave & Anor
In Burns v Seagrave & Anor, the accused individual presented to the Kings Cross police station to complain about drug dealing in the area. He was very upset with the response of Police and challenged the Police refusal to take any action, also refusing to give his name when asked and told the sergeant; “I don’t have to give you anything, you fat spiv. You’re nothing but a useless fat spiv. I don’t have to talk you, you giraffe.” In another exchange, the accused said to the sergeant; “I’m not speaking to you, you’re not my type.” He was charged with using offensive language and the evidence put forward made claims that the sergeant was extremely offended by the homosexual connotations however the magistrate dismissed the charge. The DPP lodged an appeal against this decision and the dismissal of the charge, with the Supreme Court of New South Wales supporting the right to appeal providing that there was sufficient evidence to allow the case to proceed.
The legal concepts of offensiveness and indecency lie at the heart of many public order offences. Decisions such as Ball v McIntyre and Saunders v Herold are important particularly as guides to magistrates charged with the duty of determining whether particular conduct is offensive. The conceptions of good order and decency created and applied by both police officers and magistrates have the potential to operate unfairly against minorities who are perceived to be a threat to social order and/or police authority. For a review of the wide range of conduct that has been caught by these laws, see D Brown, D Farrier and D Weisbrot, Criminal Laws (2nd ed, Sydney: Federation Press, 1996), pp 957-959. Resist Arrest / Resist, Hinder Police Offences In New South Wales, an individual can be charged under two sections of the Crimes Act 1900 (NSW) . If charged and convicted under Section 58 , an individual can receive a Maximum penalty of (5) years imprisonment and if charged and convicted under Section 546C , the Penalty is only 12 months’ imprisonment or a $1,100 fine. In Queensland, resisting arrest can be charged under either the Police Powers and Responsibilities Act or the Criminal Code . Section 790 - Offence to assault or obstruct police officer (1) A person must not—(a) assault a police officer in the performance of the officer’s duties; or (b) obstruct a police officer in the performance of the officer’s duties. Penalty— Maximum penalty— (a) if the assault or obstruction happens within licensed premises, or in the vicinity of licensed premises—60 penalty units or 12 months’ imprisonment; or (b) otherwise—40 penalty units or 6 months imprisonment. (2) For subsection (1), a person who obstructs a police dog or police horse under the control of a police officer in the performance of the police officer’s duties is taken to obstruct the police officer. (2A) The Penalties and Sentences Act 1992 , section 108B also states a circumstance of aggravation for an offence against this section. (3) In this section— "assault" has the meaning given by the Criminal Code, section 245. "obstruct" includes hinder, resist and attempt to obstruct. Section 340 - Serious assaults(1) Any person who— (a) assaults another with intent to commit a crime, or with intent to resist or prevent the lawful arrest or detention of himself or herself or of any other person; or (b) assaults, resists, or wilfully obstructs, a police officer while acting in the execution of the officer’s duty, or any person acting in aid of a police officer while so acting; or (c) unlawfully assaults any person while the person is performing a duty imposed on the person by law; or (d) assaults any person because the person has performed a duty imposed on the person by law; or (e) assaults any person in pursuance of any unlawful conspiracy respecting any manufacture, trade, business, or occupation, or respecting any person or persons concerned or employed in any manufacture, trade, business, or occupation, or the wages of any such person or persons; or (f) unlawfully assaults any person who is 60 years or more; or (g) unlawfully assaults any person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device; is guilty of a crime. Penalty— Maximum penalty— (a) for subsection (1) (b) , if the offender assaults a police officer in any of the following circumstances—(h) the offender bites or spits on the police officer or throws at, or in any way applies to, the police officer a bodily fluid or faeces; (ii) the offender causes bodily harm to the police officer; (iii) the offender is, or pretends to be, armed with a dangerous or offensive weapon or instrument—14 years imprisonment; or (b) otherwise—7 years imprisonment. Example— walking frame, caliper, walking stick and artificial limb
(1C) The Penalties and Sentences Act 1992 , sections 108B and 161Q also state a circumstance of aggravation for an offence against subsection (1) (b) . (1D) An indictment charging an offence against subsection (1) (b) with the circumstance of aggravation stated in the Penalties and Sentences Act 1992 , section 161Q may not be presented without the consent of a Crown Law Officer. (2) A prisoner who unlawfully assaults a working corrective services officer commits a crime. Penalty— Maximum penalty— (a) if the prisoner assaults a working corrective services officer in any of the following circumstances— (i) the prisoner bites or spits on the corrective services officer or throws at, or in any way applies to, the corrective services officer a bodily fluid or faeces; (ii) the prisoner causes bodily harm to the corrective services officer; (iii) the prisoner is, or pretends to be, armed with a dangerous or offensive weapon or instrument—14 years imprisonment; or (b) otherwise—7 years imprisonment. (2AA) A person who— (a) unlawfully assaults, or resists or wilfully obstructs, a public officer while the officer is performing a function of the officer’s office; or Example— A person unlawfully assaults an authorised officer under the Child Protection Act 1999 while the officer is investigating an allegation of harm to a child under that Act. (b) assaults a public officer because the officer has performed a function of the officer’s office; commits a crime. Penalty— Maximum penalty— (a) if the offender assaults a public officer in any of the following circumstances— (j) the offender bites or spits on the public officer or throws at, or in any way applies to, the public officer a bodily fluid or faeces; (ii) the offender causes bodily harm to the public officer; (iii) the offender is, or pretends to be, armed with a dangerous or offensive weapon or instrument—14 years imprisonment; or (b) otherwise—7 years imprisonment.
(2B) The Penalties and Sentences Act 1992 , section 108B also states a circumstance of aggravation for an offence against subsection (2AA).(3) In this section— "corrective services facility" see the Corrective Services Act 2006 , schedule 4 . "Corrective services officer" see the Corrective Services Act 2006 , schedule 4 . "office" includes appointment and employment. "prisoner" see the Corrective Services Act 2006 , schedule 4 . "public officer" includes— (a) a member, officer or employee of a service established for a public purpose under an Act; and Example— Queensland Ambulance Service established under the Ambulance Service Act 1991(c) a health service employee under the Hospital and Health Boards Act 2011 ; and (d) an authorised officer under the Child Protection Act 1999 ; and (d) a transit officer under the Transport Operations (Passenger Transport) Act 1994 . "working corrective services officer" means a corrective services officer present at a corrective services facility in his or her capacity as a corrective services officer. In New South Wales, resisting arrest is one of the most common offences seen by the Aboriginal Legal Service. There is no difference in the elements of the offences under either section however, Section 58 provides that the ‘victim’ must be a constable, other peace officer, customs house officer, sheriff’s officer, prison officer or bailiff and in contrast, Section 546C only extends to a ‘police officer.’ 546C - Resisting etc police Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both. Section 58 - Assault with intent to commit a serious indictable offence on certain officersWhosoever-- assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff's officer, or bailiff, or any person acting in aid of such officer, orassaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. Elements of the Offence The prosecution must prove two elements of these offences beyond a reasonable doubt, the element of ‘Mens Rea’ and ‘Actus Rea’. In a nutshell, ‘Mens Rea’ refers to the intent and whether or not the individual charged with this offence had the intent necessary to be found guilty of the offence whilst ‘Actus Rea’, refers to whether the individual actually acted in a way alleged. Did their behaviour actually have the effect of resisting or obstructing etc. Mens Rea To be guilty of resisting arrest, the person resisting must actually intend to oppose or restrain a police officer. Therefore, ‘specific intent’ to oppose a police officer must exist. In R v Galvin (No.2) , O’Bryan, Dean and Hudson JJ held that; ‘The word “resist carries with it the idea of opposing by force some course of action which the person resisted is attempting to pursue. To “resist” such a course of action, the person said to resist must know what that attempted course of action is. This requires the existence of a specific intent on the part of the alleged resistor. The composite expression “resist a member of the police force in the execution of their duty” connotes an intention to oppose or restrain a member of a particular class in the community and while that member is acting in a particular way... So also, with the third of these three offences – ‘obstructing’. There the Legislature has introduced the word ‘wilfully.’ It was probably thought unnecessary to introduce any word before ‘assaults’ or ‘resists’ because the crimes of assault and the very word ‘resists’ already imports the notion of intention ’. In his separate concurring judgement, Barry J held that;‘Resistance to another person’s action may be active or passive, but it necessarily involves an intention to oppose that other persons will ’ and;‘In my view, it will often be clearly evident as to the intention of the accused. However, it is important to bear in mind that the onus rests upon the crown to prove that the accused specifically intends to resist the police ’. The Court in R v Appleby concluded that passive action constituted resistance .In R v Galvin (No.2) O’Bryan, Dean and Hudson JJ held;‘...the onus is on the Crown from first to last to prove that the intention of the accused was in the one case to assault a policeman who was acting in the due execution of their duty, in the second case to resist a police officer so acting... ’ Historically, the courts have not required proof of fault, for minor public order crimes such as offensive conduct. Although the commitment to subjectivism remains weak for most public offences, some courts have emphasised the importance of intention in cases where the crime carries a penalty of imprisonment. Jeffs v Graham Jeffs v Graham provided, that the requirement that the prosecution must prove that offensive behaviour was “intended” was affirmed in Daire v Stone. In this case, the accused was charged with behaving in a “disorderly manner” in a public place contrary to s 7 of the Summary Offences Act which expressly included, behaving in an “offensive manner”. The allegation was that the accused had “eyed off” females in a store, the charge was initially dismissed, and the prosecution appealed. The Supreme Court of South Australia dismissed the appeal by the prosecution on the ground that the offence of disorderly behaviour requires proof beyond reasonable doubt that;“There is a conscious and deliberate course of conduct by the accused person which constitutes this interference with the comfort of other people such as to leave the tribunal of fact with no reasonable doubt that the conduct of the accused person was intentionally done to bring about such interference”.
And;“On these facts, there was no evidence of the purpose or intention of the accused so to establish that the conduct was directed at the victims. Since obscene language is often used unconsciously as a means of linguistic emphasis or general expletives, requiring a proof of subjective fault is an important limitation on the scope of this offence”. Consider also however, the case of Police v Pfeifer where the accused wore a t-shirt in public emblazoned with the words “Too Drunk to Fuck”. He was convicted of behaving in an offensive manner the same section of the Summary Offences Act and the Supreme Court of South Australia, in dismissing the appeal, held that s 7 did not require the prosecution to prove an intention or knowledge. The Court reviewed more recent authorities favouring subjective fault for offensive conduct crimes. In Applying the principles laid down by the High Court in He Kaw Teh v The Queen, the Supreme Court held that the presumption that intent or knowledge is an essential element of s 7 had been rebutted. Doyle CJ, with whom Debelle and Lander JJ agreed, attached particular relevance was the language of the section noting that; “Other crimes of offensive-ness in the Act expressly required intention and the subject matter of the provision”. Actus Reus Resistance is defined as opposing by force, some course of action by the Courts such as an element of ‘violence’ or some positive action to prove a ‘resist offence’. The Courts though provide that in terms of an ‘obstruct offence’, there need only be a passive action. In R v Galvin (No.2) , O’Bryan, Dean and Hudson JJ held;‘The word ‘resist’ carries with it the idea of opposing by force some course of action which the person resisted is attempting to pursue ’. In R v Appleby Humphreys, Atkinson and Tucker JJ held; ‘This court entertains no doubt that “Violence” used in this connection means real violence, that is to say something more than a mere refusal to submit to arrest. It probably means something more than would be sufficient to justify a conviction of obstructing the police officer in the execution of his duty; violence means violence ’. Wilful Obstruction / Obstruct Police Offences In New South Wales, the Crimes Act 1900 (NSW) provides the offence of ‘wilful obstruction’ with a Maximum penalty of (2) years imprisonment and in Queensland, the obstruction of a Police Officer is an offence under the Criminal Code providing a maximum of seven years imprisonment and the Police Powers and Responsibilities Act provides for a maximum penalty of 40 penalty units or six months imprisonment in Queensland. The elements of ‘Mens rea’ (intent) and ‘Actus Rea’ (action), must again be proven beyond a reasonable doubt in order for an individual to be found guilty of this offence. The offences of resisting and obstructing Police are often interchangeable and the key difference between them, at least when it comes to assigning or proving guilt is that in the circumstances of ‘resist’, the Courts provide that there needs to be some ‘violence’ and/or positive action whereas, where the Courts are considering a matter of ‘obstruct’, the action can be passive. Nevertheless, in each circumstance the ‘Mens Rea’ (intent) and ‘Actus Rea’ (action) must be proved. In Lewis v Cox , the Court held that;The simple facts which the court has to find are whether the defendant’s conduct in fact prevented the police from carrying out their duty, or made it more difficult to do so, and whether the defendant intended that conduct to prevent police from carrying out their duty or to make it more difficult to do so . Section 790(1) may be contrasted with s 340(1)(b) of the Code , which provides that “any person who wilfully obstructs a police officer while acting in the execution of the officer’s duty is guilty of a crime and is liable to imprisonment for seven years.” The presence of the term “wilfully” in that section makes it similar to English statutory provisions in respect of which it has been held that the offence is committed only if it is shown that the defendant did the act with the intention of obstructing the police officer. In Willmott v Atack Croom-Johnson LJ, with whom the other members of the Court of Appeal agreed, adopted the definition of “obstruct” given by Lord Parker CJ in Rice v Connolly and concluded that it was not sufficient for the prosecution to show that the particular act which amounted to an obstruction was done deliberately, but; “there must be something in the nature of a criminal intent of the kind which means that it is done with the idea of some form of hostility to the police with the intention of seeing that what is done is to obstruct, and that it is not enough merely to show that he intended to do what he did and that it did in fact have the result of the police being obstructed.” In Lewis v Ogden the High Court at p 688 said that “wilfully” meant intentionally or deliberately, importing a notion of purpose and doing more than negativing the notion of inadvertently or unconsciously. In R v Lockwood , it was held that the word “wilfully” in Chapter 46 of the Criminal Code was also satisfied by proving that the defendant deliberately did an act and at the time that he did it, the result charged in the indictment was a likely consequence of his act and he recklessly did the act regardless of the risk, though it was sufficient to prove the existence of an actual intent. In terms the decision was confined to Chapter 46 , which does not include s 340 . In arriving at this conclusion, the court was influenced by the decision of the High Court in Vallance v R where the Court made a decision as to the meaning of the word “intentional” where it appeared in s 13(1) of the Criminal Code of Tasmania. Although Tasmania is a Code state, s 13 is to the opposite effect of s 23(2) , in that prima facie it requires intention for criminal responsibility. As a result, the Tasmanian Code is significantly different from the Queensland Code. In Dibble v Ingleton the Court of Appeal held that the approach in Rice v Connolly applied only in circumstances where the obstruction consisted of a refusal to do something which the person was under no legal obligation to do. Bridge J with whom the other members of the court agreed; “On the other hand, I can see no basis in principle or in any authority which has been cited for saying that where the obstruction consists of a positive act, it must be unlawful independently of its operation as an obstruction of a police constable under s 51. If the act relied upon as an obstruction had to be shown to be an offence independently of its effect as an obstruction, it is difficult to see what use there would be in the provisions of s 51 of the Police Act 1964 .” The terms of s 51 can be conveniently passed over, but one may note that s 340 , which makes the wilful obstruction of a police officer an offence, also covers a large number of other matters under the general heading “serious assaults”. In some cases, the specific paragraph of subsection (1) includes the word “unlawfully” and in some cases it does not. The obvious inference is that the legislative intention was that in some cases it is necessary to show that what was done was done unlawfully, that is to say without authorisation, justification or excuse, and in some cases, it is not necessary to show this, and it is sufficient to prove the specific elements identified in the paragraph. In those circumstances s 340(1) in itself makes the behaviour (with or without any intention) a crime, and hence unlawful. Indeed, the terms of s 790(1) not only provide a penalty for obstructing police but prohibit the obstruction of police. It is therefore made unlawful in the absence of some defence. In Couchy v Birchley his Honour Judge McGill, considered an offence of obstruct police and the necessity of the person to have been lawfully arrested. His Honour was also considering an offence of public nuisance pursuant to section 7AA of the Vagrants, Gaming and Other Offences Act and Section 198 of the Police Powers and Responsibilities Act , McGill DCJ said: "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 concerned and the Magistrate." And further, his Honour said:"It is however, unnecessary for me to consider the matter further. If what was 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 at the time in fact reasonably necessary for the arrest to be affected for one or more of the reasons, there was simply no evidence from any source of that." In Coleman v Power McHugh J said;"Each of the sub-sections under which the appellant was charged is predicated on the lawfulness of the action being resisted or obstructed. It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing. In Re K, after reviewing the authorities on the scope of an officer's duty, the full court of the Federal court said: "The effect of all of those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein, An officer who unlawfully arrests a person is not acting in the execution of his or her duty ....... " McHugh J continued:45 "These authorities show that once the conduct of an officer is unlawful, the level of physical response offered by an accused is irrelevant to a charge involving the "execution of duty" or "performance of duty". Coleman v Power In the case of Coleman v Power , the High Court was asked to consider whether flyers using ‘insulting words’, alleging police corruption in the Queensland Police Force constituted a criminal offence or whether they were protected under the implied freedom of political communication. Coleman was a student of law and politics in Townsville and was arrested by Power, (a police officer) when he was asked to stop handing out the flyers and refused. Power arrested Coleman for using ‘insulting words’ under the Vagrancy Act as well as assaulting and obstructing a police officer. Ultimately, Coleman was found not guilty of an offence against s7(1)(d) of the Vagrancy Act , With Gummow, Hayne JJ and Kirby J holding that this particular section of the Act infringed upon the rule and test established in Lange v Australian Broadcasting Corporation . They reasoned that, what Coleman said was not insulting as intended by the Act and agreed with Coleman that communications alleging corruption of police were protected by the implied right to political communication with Kirby J stating;“Insulting words were a well-known tradition in Australian politics from its earliest history” Although the Court held that the arrest was considered lawful, at least in relation to the assault/obstruct offence, other cases have held that an arrest is unlawful if a person is not told of the reason for the arrest, in circumstances where the accused would not have known the reason for the arrest, and it was not practicably impossible to have informed him. Horton v Rowbottom I mentioned this case previously as it provided an authority regarding what is obscene and offensive language however, the case also considered whether or not the defendant could be lawfully arrested in the absence of being told the reason for the arrest. As previously mentioned, the Police attended the property over an alleged domestic dispute, where the accused kept repeating the word ‘fuck’. Police asked the accused to calm down and stop using the language and was arrested. In this case, the Police had not warned the defendant that the use of the word could or would result in a criminal offence and although it was argued the defendant should have known, for what reason he was under arrest given the officers had asked him to stop using the word repeatedly, The Supreme Court of South Australia eventually held that the arrest was unlawful, that the defendant did not know why he was under arrest and that it was not impracticable for the Police to explain to the defendant why he was under arrest. In Hortin v Rowbottom , Mulligan J stated;"Of course, it is well recognised that the failure to inform a person of the reason for the arrest does not render it unlawful if the circumstances are such that he must know the general nature of the alleged offence for which he is detained and he produces the situation which makes it practically impossible to inform him of the reason for the arrest ; Whilst the incident involving Constable Muir and the appellant was only a brief period of time, there was sufficient time for the appellant to ask why he was being arrested and for that information to be given to him, I do not think the appellant would have known the reason for his arrest and it was not practicably impossible to inform him of the reason for his arrest. Consequently, it was not established that is arrest was lawful, it is not the resistance of a police officer which constitutes the offence, but "what the police officer is doing or attempting to do, namely the execution his duty ". As the arrest was not proved lawful, the appellant did not resist Constable Muir in the execution of any relevant duty and this charge was not proved beyond reasonable doubt. " There has been a number of cases where an obstruct charge has been dismissed by the Courts because the arrest has been found unlawful. Let’s firstly look at the relevant legislation in Queensland. Section 365 - Arrest without warrant (1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects have committed or is committing an offence if it is reasonably necessary for 1 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; (b) to ensure the person’s appearance before a court; (c) to obtain or preserve evidence relating to the offence; (d) to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence; (e) to prevent the fabrication of evidence; (f) to preserve the safety or welfare of any person, including the person arrested; (g) to prevent a person fleeing from a police officer or the location of an offence; (h) because the offence is an offence against section 790 or 791 ; (i) because the offence is an offence against the Domestic and Family Violence Protection Act 2012 , section 177 , 178 or 179 ; (j) because of the nature and seriousness of the offence; (k) because the offence is— (i) an offence against the Corrective Services Act 2006, section 135 (4) ; or (ii) an offence to which the Corrective Services Act 2006, section 136 applies. (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 15. (3) Subject to the Youth Justice Act 1992 , section 13, it is lawful for a police officer to arrest a child without warrant if the police officer reasonably suspects the child is committing or has committed an offence.
Police v Bubbles In the case of Police v Bubbles , the defendant Milo Bubbles was charged with the offences of public nuisance and obstruct police. The facts of the case provide that Mr Bubbles was walking through the Brunswick Street Mall, Fortitude Valley with his partner nearby the Brunswick Street Mall Police Beat where five police officers; Constables Dods, Hackett and Purcell, Senior Constable Cox and Sergeant Whitehouse were chatting outside between themselves. As Mr Bubbles and his wife walked through the group of police officers, he said the words to the effect of "fucking wankers". Constable Dods called out to Mr Bubbles requesting that he stop before following and taking Mr Bubbles by the arm saying, ‘What did you say?”, Mr Bubbles replied "Nothing”, and Constable Dods said "You're under arrest" Constable Dods took Mr Bubbles toward the Police Beat and through the main door. Mr Bubbles then started to pull his arm away from the Constable Dods, who then attempted to restrain Mr Bubbles and move him toward the rear of the Police Beat. The case of `obstruct police' against Mr Bubbles was not particularised however, the Court considered whether his behaviour amounted to an obstruction and/or public nuisance and in considering this, the Court considered in particular, section 444 of the Police Powers and Responsibilities Act which provides that to constitute an obstruct offence, the police officer must be acting "in the performance of the officer’s duties" concluding on this occasion that the officer was not acting in the performance of their duties. The Court determined that the officer could not rely on section 198(2) to arrest Mr Bubbles without a warrant to question or investigate an offence as that provision is only for the commission or suspected commission of an indictable offence and the offence of public nuisance is not indictable. The only sub-sections which could have been considered in this case are section 198(1)(a), (b), (c) and (i). Sub-sections (d), (f) and (j) - (1) could not apply in the circumstances of this case. Sub-Section (1)(a) says a person can be arrested without a warrant if it is reasonably necessary to prevent the continuation of an offence or repetition of an offence or the commission of another offence. The Court determining this was not the case as when Mr Bubbles was invited to repeat the words again at the invitation of Constable Dods, that is, as far as Constable Dods was concerned, to commit the offence again, Mr Bubbles refused. It could not be said he was continuing the offence nor intended to commit another offence. All he did was say `nothing' and he was immediately arrested. Further, he stopped when Constable Dods put his hand on his arm and answered Constable Dods when Constable Dods spoke to him. Mr Bubbles had walked about 5 paces after saying the words when Constable Dods put his hand on his arm. He stopped and spoke. He was then immediately arrested. There is no evidence he was about to commit another offence. Further, subsection (1)(b) provides for arrest to establish a person's identity and there was no evidence of this before his arrest and it was said that at the police beat, he was `happy' to show the police officer his ID. Subsection (1)(c) provides for arrest to ensure a person’s attendance before the court but there is no evidence this was the reason for the arrest of Mr Bubbles in the Brunswick Street Mall. Subsection (1)(g) provides for arrest if it is reasonably necessary to preserve the safety or welfare of any person including the arrested person. Any concern for Mr Bubbles' welfare was after he was arrested inside the Police Beat and cannot be relied upon as to why he was arrested in the street. Subsection (1)(h) could not be relied upon as Mr Bubbles was not fleeing Constable Dods. Constable Dods said stop twice,51 put his hand on Mr Bubbles, spoke to Mr Bubbles who answered him, and he was immediately arrested. There is no suggestion whatsoever he was fleeing Constable Dods or the scene. Subsection (1)(i) allows for arrest for an offence against section 444. This is clearly not why he was arrested. Mr Bubbles is said to have obstructed the police officer after he was arrested and when he was inside the Police Beat. Accordingly, the legislative provision to arrest Mr Bubbles is section 198 of the PPRA. None of the reasons provided in that section which allow for arrest without a warrant have been met. Constable Dods had no power to arrest Mr Bubbles for the simple offence of public nuisance and the arrest was considered unlawful by the Court. Further, there is no evidence that Constable Dods told Mr Bubbles why he was arrested and there was ample opportunity for Constable Dods to tell him why. This was not a case where Mr Bubbles knew what he did was wrong. To the contrary, he, did not think he had done anything wrong . The failure by Constable Dods to tell him why he was arrested means also that the arrest was not lawful . For the sake of completeness, the Court considered whether the behaviour of Mr Bubbles amounted to an offence of obstruct police if the arrest by Constable Dods was lawful. Mr Bubbles was not told why he was arrested and did not think he had done anything wrong and was now being deprived of his liberty. His behaviour afterwards and inside the Police Beat must be seen in that context. Surely, he must be able to challenge the police officers conduct towards him in those circumstances. It would be natural to do so. There is no evidence to suggest that was any more than a short moment in time. The pulling away of his arm and the holding of a door jamb must be within the bounds of acceptable or foreseeable human behaviour in such a circumstance. Booy v Police In the case of Booy v Police , it was alleged that Mr Booy, being loud and using an aggressive tone, calling Sergeant Atkinson a ‘fucking liar’ whilst leaning slightly forward and taking a step towards the officer at a Mt Garnett rodeo, behaved in an offensive/threatening way and that constituted a public nuisance offence. Mr Booy was also charged with an obstruct police charge.
The evidence supported a finding that there was no attempt to strike Sergeant Atkinson and Senior Constable Kendjelic said that Mr Booy had been standing with his hands in front of him in a non-aggressive way. The Court considered the the following judgements relating to offensiveness and whether, when aimed at police officers, whether the words ‘fucking liar’ could amount to offensive and/or threatening, thereby proving the public nuisance offence. In Coleman v Power , Gummow, Hayne and Kirby JJ stated that;“Where offensive conduct is directed at a police officer, there is much less of a chance that the conduct in question will be considered an offence. This is because a police officer, by virtue of his/her training and temperament would not be provoked to such unlawful retaliation.” As Kirby J says; “The law would not impute that possibility to police officers who, like other public officials, are expected to be thick-skinned and broad- shouldered in the performance of their duties.”Similarly, in their joint judgement, Gummow and Hayne JJ state that; “The bare use of the words to a police officer which the user intends should hurt that police officer will not constitute an offence because police officers must be expected to resist the sting of insults directed to them.” Thus, three members of the High Court clearly state that insulting language directed at a police officer will not, in the absence of highly exceptional circumstances, constitute offensive language within the meaning of the section . In Butterworth v Geddes , Forde DCJ refers to Coleman v Power in particular, Gleeson CJ where he said; ‘Concepts of what is disorderly, or indecent, or offensive vary with time and place, and may be affected by the circumstance in which the relevant conduct occurs. The same is true of insulting behaviour and speech.” In Ashton v Green , Bundaberg Judge Skoien said; “Under section 7AA (now Section 6) the question of whether a person behaves in an offensive way by the use of offensive language must no doubt be judged objectively. Otherwise, an offence could be committed by saying, to a person of extremely delicate sensibilities, something which that person found offensive but which most people would regard as quite acceptable. But in making an objective judgement the surrounding circumstances are surely relevant; such things as the time and place, the vehemence of the utterance and, relevantly, whether the utterance has, would be known to the speaker to have, and is intended by the speaker to have, special relevance to the recipient. In my opinion this utterance was vehement; the appellant must have known it to carry an extra sting when directed at police; he must have intended to inflict that extra sting.” And at paragraph 23 referring to Coleman v Power , “Those passages support my opinion that subjective matters can be considered when deciding whether a statement is offensive to a particular person, but I do not take their Honours to be laying down a general rule that police officers cannot be offended by publicly expressed insult or abuse. The thrust of their comments was to the effect that the likelihood of a breach of the peace occurring as a result of the insult or abuse was an essential element of the offence under section 7(i)(d) of the Vagrants Act, the provision then being considered.” The Court agreed with the prosecution that Mr Booy’s behaviour was offensive and occurred in a public place however, ultimately decided that there was no evidence that the offensive behaviour interfered with the enjoyment of the rodeo, with neither the police nor other witnesses in the group providing any evidence that their peaceful enjoyment was interfered with and as a result, held that the prosecution failed to prove the public nuisance offence, according to the relevant standard. Likewise, My Booy was found not guilty of the obstruct offence. The Court considered the decisions of the Queensland Court of Appeal in Rowe v Kemper, and the South Australian Supreme Court in Gaskin v Police concluding that, It would have been lawful for Sergeant Atkinson to arrest Mr Booy, if he reasonably suspected Mr Booy had committed or was committing an offence, IF, it was reasonably necessary for one of the reasons listed in Section 365 Similarly, as in the case of Police v Bubbles. Public Nuisance is not an indictable offence, nor an offence against Sections 790, or 791 of the Police Powers and Responsibilities Act . It is not an offence against the Domestic and Family Violence Protection Act , or the Corrective Services Act . The Juvenile Justices Act does not apply, as Mr Booy is an adult. The Court held that an act of public nuisance may be of such a nature and of such seriousness to warrant an arrest without a warrant, as in the case of a person abusing staff at a hospital however, the facts of this case are not such as to justify an arrest under Section 365(1)(k) . Sergeant Atkinson gave no evidence at all to justify the arrest. There is no evidence that the arrest was necessary to satisfy any of the requirements of Section 365(1)(a) to (h) . The only evidence that went anywhere near addressing the requirements of Section 365 was that Mr Magoffin asked Sgt Atkinson why it was necessary to arrest Mr Booy, to which Sergeant Atkinson replied, “it was necessary because of his behaviour and his aggressive step towards me”. For the above reasons, the arrest was considered unlawful and both charges against Mr Booy were dismissed. Public Nuisance Offences Summary Offences Act Section 6 – Public Nuisance(1) A person must not commit a public nuisance offence. Penalty— Maximum penalty— (a) if the person commits a public nuisance offence within licensed premises, or in the vicinity of licensed premises—25 penalty units or 6 months imprisonment; or (b) otherwise—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. (4) 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.(5) 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. (6) Also, in a proceeding for a public nuisance offence, more than 1 matter mentioned in subsection (2) (a) may be relied on to prove a single public nuisance offence.
The cases of Bubbles , Booy , Horton and Rowe mentioned above, all relate to circumstances of ‘public nuisance’. These cases provide authorities for the interpretation of matters, what is offensive and also provide in some instances, defences to the offence. In all but the case of Rowe , the offence was dismissed however, Rowe successfully brought a civil action against police.
The Bubbles case was dismissed because the Court held that the arrest was unlawful even though the Court agreed with the prosecution that the language was offensive and occurred in a public place. Similarly, the Booy case was dismissed because the arrest was considered unlawful also however, the difference between these cases is that the Court held in Booy v Police that there was insufficient evidence to prove the public nuisance offence beyond a reasonable doubt because even though there were witnesses and the police provided evidence at trial, there was no evidence that Mr Booy’s language interfered with the enjoyment of anyone. In Bubbles v Police , one element of the offence easily dealt with by the Court was that the place where the words were said, the Brunswick Street Mall, considered a `public place' for the Purposes of the Vagrants Gaming and Other Offences Act. The Court was also satisfied that police officers are members of the public and capable of being offended by the behaviour of others however, it is relevant that the only person who heard the words were police officers. In DPP v Orum the English Divisional court noted;"Words and behaviour [of this kind] would be wearily familiar to police and have little emotional impact save that of boredom." In Coleman v Power , although considering the now repealed section 7(i)(d) of the Vagrants Gaming and Other Offences Act , Gummow and Mayne JJ said;“The bare use of words to a police officer which the user intends should hurt that officer will not constitute an offence. By their training and temperament, police officers must be expected to resist that sting of insults directed to them." And Kirby J said at paragraph 258: "at least the law would not impute that possibility to police officers who, like other public officials are expected to be thick skinned and broad shouldered in the performance of their duties. " The question for the Court in this case was really whether the words, "fucking wankers", was an offence under section 7AA of the Vagrants Gaming and Other Offences Act . A question with two limbs, were the words offensive, obscene, indecent or abusive? And did the defendants use of the words interfere with or were they likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public? Offensiveness It was not argued that the words were obscene, indecent or abusive but that they were offensive. The test for whether the words were offensive is an objective test to be applied in accordance with contemporary community expectations .The court's finding merely "represents an expression of contemporary community standards accepted by ordinary decent minded citizens." Whether the conduct offends community standards is to be assessed in light of the Court's view of community standards, not the view of a particular witness . In Regina v Suckling, the Court considered the application of R v Swaffield and Pavic where the High Court of Australia applied community standards test to the admissibility of evidence obtained by subterfuge. The court pointed out;"That the reference by the High Court, as by this Court, to the community standards in this respect is not any notion of populist public opinion. Rather, this refers to community standards concerning the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement. " And;“The meaning of community standards, in any particular legal context, is a question of law; whether the application to the circumstances of a particular case produces a particular result may be regarded as a question of fact. Community standards in this context are not the same as popular opinion or vulgar prejudice: they are the expression of standards that reflect the fundamental values of our society so far as the application of the criminal law is concerned, including, as particularly relevant here, the principle of equality before the law or equal justice." In Birchley v Couchy McGill DCJ said;"The application of current community standards in the relevant context and circumstances is a matter for the magistrate, to determine as a question of fact. Again, when considering the community standard the court must have regard to context and circumstances in which the words were used. In Edbrooke v Hartman Wylie QC DO said; "However, they do contain certain observation or comments of mine which emphasize the need to always bear in mind that part of the legal test requires determination of the context and circumstances in which the impugned language was used and of course the community standard in regard to the use of such language in that context and those circumstances. There is no prescribed list of statutorily verboten words. The community standard is not an immutable one, fixed from a past era; it is the standard at the time the language is used. .........As the tribunal of fact, the stipendiary magistrate had to, and now on these appeals I must, identify the relevant community standard and that must be done beyond reasonable doubt. The benefit of any doubt as to, or difficulty in divining, the current community standard as to the use of a word or of words in the relevant context and circumstances must, as a matter of law, be given to the defendant. " In Coleman v Power the Chief Justice of the High court said: "Concepts of disorderly or indecent or offensive vary with the time and place and may be affected by the circumstances in which the relevant conduct occurs." Disorderly Conduct In Barrington v Austin & Oths, Napier J said;"...I have no doubt that these words `disorderly behaviour', refer to a substantial breach of decorum which tends to disturb the peace or interfere with the comfort of other people who may be in, or in the vicinity of, the street or public place." In Donnelly v McDonald, Wylie DCJ said: “s 7(1)(e) is intended to strike at conduct, which is lewd or prurient or involves moral turpitude, conduct in the form of some intentional bodily act. The offence is not concerned with conduct which is merely unseemly or in bad taste. And it must be conduct such as to merit punishment by the criminal law." Section 7AA and now Section 6 of the Summary Offences Act provides that to commit a public nuisance the behaviour must not only be offensive but that it must interfere or be likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public. In Butterworth v Geddes, Forde DCJ said; "If only one of the persons in the street was to have his or her enjoyment interfered with by the conduct of the appellant whilst that person was in the street, then the element of the offence is established. It is able to be inferred from the nature of the conduct that it was likely that the appellant's conduct did interfere with the peaceful passage through or enjoyment of anyone passing by or hi the street at the material time. " In McLennan v McLennan, McGill DCJ stated; "...Likely" in my view does not in the statute mean more probable than not, but it must at least involve a real, not remote likelihood, something more probable than a mere chance or risk." Move Along Directions Commonly accompanying charges of public nuisance and resist arrest are move on directions and/or the failure to move-along or comply with a lawful direction. The same principals apply here in that, the directions must be considered lawful. In Queensland, these types of orders originally only applied to specific areas (usually a CBD) of a local government area however, these directions can now be given to anyone, anywhere in Queensland and in New South Wales . Section - 197 Directions generally relating to public places(1) A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person's behaviour or presence in the place (referred to in this Part as "relevant conduct" )—(a) is obstructing another person or persons or traffic, or (b) constitutes harassment or intimidation of another person or persons, or (c) is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or (e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess. (2) A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of—(a) reducing or eliminating the obstruction, harassment, intimidation or fear, or (b) stopping the supply, or soliciting to supply, of the prohibited drug, or (c) stopping the obtaining, procuring or purchasing of the prohibited drug. (3) The other person or persons referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in. (4) For the purposes of subsection (1)(c), no person of reasonable firmness needs actually be, or be likely to be, present at the scene. The Law Enforcement (Powers and Responsibilities) Act also provides for Move-on directions to intoxicated persons in public spaces separately in New South Wales under Section 198. In Queensland, Section 48 of the Police Powers and Responsibilities Act provides for the direction whilst Section 791 provides for the offence. Section 48 - Direction may be given to person (1) A police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances. Examples for subsection (1)— 1) If a person sitting in the entrance to a shop is stopping people entering or leaving the shop when it is open for business and the occupier complains, a police officer may give to the person a direction to move away from the entrance. 2) If a group of people have been fighting in a nightclub car park, a police officer may give the people involved in the fight a direction to leave the premises in opposite directions to separate the aggressors. 3) If a person has approached a primary school child near a school in circumstances that would cause anxiety to a reasonable parent, a police officer may give the person a direction to leave the area near the school. (2) However, a police officer must not give a direction under subsection (1) that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of— (a) public safety; or (b) public order; or (c) the protection of the rights and freedoms of other persons. Examples of rights and freedoms for subsection (2)(c)— 1 the rights and freedoms of the public to enjoy the place 2 the rights of persons to carry on lawful business in or in association with the place (3) Without limiting subsection (1), a direction may require a person to do 1 of the following—(a) leave the regulated place and not return or be within the regulated place within a stated reasonable time of not more than 24 hours; (b) leave a stated part of the regulated place and not return or be within the stated part of the regulated place within a stated reasonable time of not more than 24 hours; (c) move from a particular location at or near the regulated place for a stated reasonable distance, in a stated direction, and not return or be within the stated distance from the place within a stated reasonable time of not more than 24 hours. (4) The police officer must tell the person or group of persons the reasons for giving the direction. Section 791 - Offence to contravene direction or requirement of police officer (1) This section applies if a person is given a requirement or direction under this Act and no other penalty is expressly provided for a contravention of the requirement or direction. (2) A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse. Penalty— Maximum penalty— (a) for contravening a direction given under section 48 — (i) within licensed premises, or in a regulated place located in the vicinity of licensed premises; or (ii) in a public place located in a safe night precinct—60 penalty units; or (b) for contravening another requirement or direction relating to a relevant law for which the penalty for a contravention of a similar requirement or direction made by a public official under the relevant law is more than 40 penalty units—the maximum penalty under the relevant law for the offence; or (c) otherwise—40 penalty units. (2) However, for a contravention of a requirement made by a police officer under section 17 or 18 , the person may be prosecuted for a contravention of the relevant authorising law or subsection (2) , but not both. (3) Unless otherwise expressly provided, it is a reasonable excuse for a person not to comply with a requirement or direction to give information if giving the information would tend to incriminate the person. (5) It is not a reasonable excuse for a person not to comply with a requirement or direction given by a police officer under chapter 17 that complying with the requirement or direction would tend to incriminate the person. Generally speaking, there are no limitations to the type of directions police officers are able to give, provided that the direction is reasonable in the circumstances for the purpose of reducing or eliminating the relevant conduct. If the move on direction is provided to an intoxicated person, the police may have the power to direct the person to not return to the area for a specified period of time. When providing a direction, the police (if they aren’t in uniform), are generally required to provide evidence that they are a police officer by giving their name, station where they are based, and the reasons behind the direction. Once a direction has been given and the person does not comply, the police officer is then required to warn the person that they are legally compelled to obey the direction and that failure to comply could amount to a criminal offence. If the person still fails to comply with the direction, the police officer must then inform the person that failure to comply is an offence. One of the more recent authorities regarding Police Powers to issue Move-Along directions and charge individuals with non-compliance is the decision handed down in Rowe v Kemper .
Rowe v Kemper
Rowe, a 65-year-old homeless man was washing his clothes in a public toilet block in the Queens Street Mall, Brisbane when a Council cleaner Mr Demane, approached Mr Rowe and asked him to leave so that he could clean the facility. Mr Rowe attempted to negotiate with Mr Demane about staying longer however, there began an argument, and the Police were called.
Four Police officers arrived and told Mr Rowe he would need to leave however, Mr Rowe became defiant and told the Police he was not doing anything wrong and did not have to leave, so Police issued him with a formal direction to leave before arresting him and charging him with failure to follow a Police direction and Assault/Obstruct Police in the performance of their duties. Mr Rowe was originally found guilty of an offence against s 445(2) of the Act (contravening a police direction given under the Act) and of an offence against s 444(1) of the Act (obstructing the respondent, Constable Kemper, in the performance of his duties) however, Rowe was acquitted of both offences on appeal with the Court determining the arrest unlawful. Interestingly, Police were of the opinion Mr Rowe was going to assault them, informing their decision to arrest him without giving him the opportunity to comply with the direction . The Police told the Court they formed the view Mr Rowe would assault them as he was being verbally defiant, but the Court held that any reasonable suspicion he was going to assault them, could only be based on past and present actions, not those in the future and Mr Rowe had not yet shown any signs of aggression.
The Court also held that a move-on direction was unnecessary and that if it was necessary for Mr Demane to clean the toilets without Mr Rowe being present, that it was only necessary to prevent Mr Rowe from entering whilst cleaning was being conducted and not the full 8 hours as per the direction.
Justice Holmes found that Mr Rowe did not contravene the direction of Police because he was only warned he could be arrested, and not that failure to comply constituted an offence whilst Justice McKenzie also found, that they did not give him a reason to comply and that, as a 65-year-old man, he needed time to comply and: “Police officers whose lot is to maintain good order and public safety in public places face a multitude of situations which often develop suddenly and have potentially unpredictable outcomes. Officers are required to make assessments, in real time, of the nature of the behaviour and how to respond to it so that good order is restored by means appropriate in the circumstances. Not infrequently, as in this case, the person whose conduct attracts attention will be disposed to be unco-operative when common-sense would suggest that a degree of give and take would avoid an escalated confrontation”. Justice McMurdo P held that; “Constable Kemper reacted disproportionately to Mr Rowe's argumentative, non-conforming behaviour in giving him the direction in unreasonably broad terms. His direction to Mr Rowe under section 39 , was not reasonable in the circumstances and was not a "direction under this Act" in terms of s 445(1) . He also acted unreasonably in the circumstances in not complying with, at least, s 391(3) (giving a reasonable opportunity to comply with the direction when it was practicable to do so) before purporting to arrest Mr Rowe under s 445(2) . It was unreasonable for Constable Kemper to have suspected that Mr Rowe had committed any offence against s 445(2) for contravening his direction so soon after he had given it.” This case not only highlights the importance of Police responsibilities when issuing move-on orders to individuals but also, making other directions as well. If the Police issue a direction, it must be done so within their powers given to them under the Act . The Courts must consider whether the provision of a direction is reasonable, if the direction is reasonable in nature and scope and whether the defendant was given enough opportunity to comply. Indigenous Australians Over-Representation Following the Royal Commission into Aboriginal Deaths in Custody the Queensland Law Society, in consultation with First Nations stakeholders, actively advocated for law reform to address the overrepresentation of Aboriginal and Torres Strait Islander people in Australia’s justice system however, Aboriginal deaths in custody are not the result of this over-representation. When you consider each case, you will find that these deaths were mostly preventable and only occurred because of Police not following procedures, often whilst in the watchhouse. Aboriginal deaths in custody are not prevented by taking less people into custody, although that may contribute to a reduction statistically, the prevention will only occur because of Police officers following the internal processes and procedures. I have personally experienced poor treatment in the watchhouse and witnessed the inhumane treatment of indigenous individuals. The issue of discrimination arises in each of the above offences. There is much literature highlighting the discrimination these types of public space offences cause among our homeless, mentally ill, and indigenous Australians despite Our State and Federal Governments attempts to ensure equality through the enactment of legislation such as, the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1991 (Qld) . Due to increased visibility in public spaces, homeless people naturally attract greater Police attention and Queensland has the highest rate of homelessness than any other Australian State . Of those individuals that are experiencing homelessness, Indigenous Australians are overrepresented. A 2005 study conducted by the Institute of Health and Welfare (AIHW) found that the rate for Indigenous Homelessness was approx. 18 per 1000 compared with just 6 for non-indigenous Australians . Tamara Walsh of the University of Queensland suggests, in relation to the public space offence of ‘failure to comply with a move-along direction that, ‘whilst the powers may not be intended to target the young, Indigenous, the mentally ill and homeless, such is their practical effect, as it is these groups who are the most regular users of public spaces.’ An aboriginal man, subjected to a move-on direction in Queensland stated, ‘I was told by Police, that I was not allowed to sleep in the park. But I was born outside in a windbreak in the Eastern Tanami Desert They can’t move us, I like sleepin out’. Another Indigenous man was quoted as saying the Police ‘target black people’ and ‘when they have nothing else to do, they come up to us and say if we are there next times, they will lock us.’ A personal account reflected in the statistics and study of Paul Spooner. The study found that although indigenous people represent just 4% of the population, 37% of individuals issues a move-along direction by Queensland Police were indigenous. It is true that, Indigenous Australians have a well-recognised cultural and social connection to the land and that, any offence which results in disadvantaging or discouraging that use is discriminatory. The use of public spaces, especially in regional Queensland, is more prevalent than other groups. The way these move-on powers and other public space offences are prosecuted, is a matter entirely for the Queensland Police Service as the Police Powers and Responsibilities Act allows for ‘subjective judgements and the exercising of discretion. The legislation that provides for these offences is not directly discriminative however, it is the application by the Queensland Police that ultimately produces indirectly discriminative outcomes. In 2000, the Honourable Curtis Pitt, Member for Mulgrave and Speaker of the Legislative Assembly commenting on the introduction of move-on powers that, ‘By and large, the success of this legislation will depend on the way in which our Police Service actually implements it.’ Indigenous Access to Legal Representation and Human Rights Many Indigenous Australians are unable to read or write and are not provided with the support they need to attend Court. When they do attend Court, Indigenous and other disadvantaged individuals are not provided with adequate support such as mental health assessments, drug and alcohol referrals or anything of that nature for summary offences as they are seen as the Courts as less serious and unlikely to result in incarceration. Article 14(3) of the ICCPR states that everyone has the right to legal representation where the interests of justice so require yet again, because most of these offences are dealt with by way of fine, many individuals attend Court unrepresented and may be disadvantaged further for failing to attend Court, where warrants are issued, and additional charges are made. Consider that a large percentage of indigenous Australians, the mentally ill and homeless are living below the poverty line, the payment of a fine has a discriminatory effect given their inability to pay such as I mentioned in the ‘begging’ example. Further, Magistrates in Queensland do not always consider a defendant’s ability to pay a fine before issuing one, often, if a defendant expresses this inability to the Magistrate the Magistrate requests that the fine is referred to SPER so that it can be paid off over a period however, this is still further disadvantaging the individual, likely receiving a government support payment. Similarly, Article 26 of the ICCPR states that,‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit and discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.’ The Australian Human Rights Commission defines discrimination as,‘Any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.’ Is Racial Discrimination a Breach of the Law? It is submitted that the indirect discrimination applied in relation to the offences above, violate both the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1991 (Qld) with this Act prohibiting laws that indirectly or directly discriminate based on race, disability, or age. I am currently working on providing additional information relating to; your Rights and Responsibilities In Custody and; What To Do When You Have been Mistreated By Police. Note: The information on this page is general in nature and isn’t legal advice. For advice about your specific situation, get legal advice from a lawyer.
It also covers practical, real-world issues people regularly face: reasonable suspicion vs belief, searches (including phones), consent, move-on powers, giving your name and address, safeguards for directions, the right to silence, use of force, and how unlawful police conduct can affect a case—including when evidence may be excluded. What Are Police Powers?
Police powers are the specific rules/codes that determine what police officers can and can’t do. Police powers are generally given under statutory provisions (laws) but can also be provided in case law (precedents) and other documents such as operational and procedure manuals.
Why Is It Important for Police to Act Only Within Their Powers?
Police are not above the law or immune to the law and are just as accountable before the law as anyone else. Firstly, because individuals have rights at common law and the courts place great importance on those rights. “Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England ‘without sufficient cause. ’ In the case of Toobridge v Hardy Justice Fullagar stated that the; ‘Right to personal liberty is the most fundamental, elementary right at common law.’ This fundamental right was also referred to by Mason and Brennan JJ in their joint judgment in Williams v The Queen. Whilst Justice Dean in Cleland v The Queen says;‘It is of critical importance, to the existence and protection of personal liberty that the restraints the law places on police officers are scrupulously observed’. In other words, it is held by the courts at common law that, courts will not look too kindly on Police officers ignoring technicalities of law.
The International Covenant of Civil and Political Rights provides; ‘People shall not be detained arbitrarily’.
What Happens When Police Don’t Act Within Their Powers? The Need for Balance.
Police must balance the rights of individuals with their responsibility to protect themselves and the wider community. Where these needs are not balanced effectively, the result can endanger life.
Let’s consider a spectrum. At one end of that spectrum, individual rights are temporarily breached however, no serious violation, injury or assault against an individual takes place. Consider however, the other end of the spectrum, where the result of this breach is death. The case of David Gundy is an example of perhaps the most extreme form of consequence of Police acting outside of their powers.
David Gundy Case
David Gundy was a 29-year-old aboriginal man, killed by the Special Weapons and Operations Squad (SWOS) of the New South Wales Police Force in 1989. Mr Gundy was at home in Marrickville, in bed, unarmed and his child was in the next room when the fatal shooting took place .
The Police claimed that during the raid on Mr Gundy’s home shortly before dawn, heavily armed Police stormed into Gundy’s room where he was in bed and awoke to find Police officers inside his room. My Gundy rose up and out of the bed when a struggle occurred and one of the Police officers, Sergeant Dawson ‘accidentally’ discharged his shotgun during the struggle.
Police were conducting a search for another man, John Porter who had previously shot at and seriously injured two police officers. Officer Alan McQueen later died from his injuries.Police raided six homes during the search for John Porter and neither of these raids resulted in the finding of and arrest of Porter. A Royal Commission into the death, found that the Police raid on Mr Gundy’s home was unlawful, stating;‘Police had no legal right to enter his home at all, much less point a loaded and cocked shotgun at him’, and made ‘serious misjudgements and to treat SWOS guidelines, the police instructions and the law and its processes disdainfully’
and that there was; ‘No real evidence that Porter would be at either of the homes raided’, and found that the search warrant Police used to raid the home was invalid; ‘By the making of patently untrue statements. Police had also failed to follow the strict restrictions applying to the warrant, by executing the raid before 6am. Police failed also, to announce themselves at the premises and to demand entry prior to entering. This is a most serious example of what can/could happen when Police act outside of their powers and responsibilities.
R v Ablitt
The Case of R v Ablitt considered an application by Senior Constable Ablitt, to appeal a sentence after he had entered a plea of guilty for being an ‘accesory after the fact’, to the unlawful assualt occassioning bodily harm of Dulcie Isobel Birt by Constable Burkitt.
The Court was asked to consider reducing the sentence imposded on Senior Constable Ablitt as the sentence given to him was more severe than the sentence given to the principal offender, Constable Burkitt.
Constable Burkitt and another constable arrested Dulcie Isobel Birt for shoplifting offences and transported her to the Loganholme Police Station and placed her into one of two holding cells. Senior Constable Ablitt was the shift supervisor and most senior officer on duty at the time. In accordance with his duties as shift supervisor Senior Constable Ablitt placed a tape into the video recording system to record Dulcie Isobel within the holding cell. It was his duty to ensure the camera was working and that the camera continued to operate until the cell was later vacated. Ms Birt refused to sign the watch house book and had a verbal altercation with Constable Burkett. Constable Burkett then assaulted her by grabbing her on the back of the neck by the hair. He took her up the hallway and pushed her face first into the holding cell. Burkett slammed the door of the cell and said words to the effect of “If you think I’ve just started you’ve got another fucking thing coming, slut.” Ms Birt then kicked the door with her right foot saying, “Well I’ve just started too, you cunt.” This caused Burkett to come back into the cell, rush at Birt, grab her around the throat and pin her up against the cell wall. Burkett went to punch her in the face with his right clenched fist but stopped about half a centimetre from her face. This part of the assault was all captured-on video tape. However, the applicant, Senior Constable Ablitt who had control over the video recording, intentionally stopped the recording at this point. Birt then punched out at Burkett as she thought she was going to be punched. Burkett then punched Birt seven or eight times in her face and under her ribs. She buckled and curled up crying in the seat in the corner. None of this serious assault was captured on video tape as the applicant had deliberately turned the video recording off as soon as Constable Burkett went to punch Ms Birt in the face with his fist. After the assault on Ms Birt, she was taken to the Beenleigh Watch House where she informed a friend by telephone that she had been assaulted. Her friend, who picked her up when she was released, noticed bruising, markings to her face, and that she was holding her ribs. Ms Birt attended at a doctor’s practice on the following day, and he noted injuries consistent with the description of the assault by Burkett. Burkett prepared a brief of evidence for the charge of assault by Ms Birt on him which included signed statements from Burkett and Castley and an unsigned statement from another police officer who is a flatmate of Burkett’s. Burkett claimed falsely that he had been kicked by Ms Birt in the shin. Castley claimed not to have seen any of the incident. No mention was made by Burkett of his assault on Ms Birt nor that there was a video tape of any of the incident. Such behaviour warrants severe and condign punishment in particular to deter others in a position of power or trust who may be tempted to commit similar criminal acts and to publicly denounce the behaviour in which the applicant was involved. Pincus JA observed in R v Smith & A-G of Qld that;“The cohesion of our society depends in substantial part on public confidence in the honesty of those who administer justice. Police have extensive powers. Their activities can ruin reputations, can put citizens in gaol, or can save them from deserved gaol.” On appeal, it was argued on behalf of the applicant that the sentence imposed on him could give rise to a justifiable sense of grievance when compared to the sentence imposed on Burkett. The principle of parity however has little utility in a case such as this. As Sangster J of the Supreme Court of South Australia observed of the offence of being an accessory after the fact in R v Mills ;“At first sight there may seem to be some basis for thinking that the categorization of the acts of the accessory depends upon the particular felony to which it relates and to the circumstances of the commission of that felony by the principal felon. On reflection, however, I am sure that such thinking is in conflict with the plain meaning of the words of s. 268 and out of step with fundamental principles of sentencing. The offence of being an accessory after the fact is, primarily, that of assisting the felon who has already committed the principal felony. An ordinary example would be to shelter or harbour a felon to enable him to avoid apprehension or to conceal the evidence of the principal felony. In most examples that come readily to mind the accessory would be most unlikely to know the whole of the circumstances of the principal felony. The gravamen of the accessory’s crime is to stand between another felon and the law. To judge an accessory by reference to the nature and circumstances of the principal felony would in most cases involve punishing the accessory – or extending leniency to him – according to the seriousness or otherwise of the criminal conduct of another person for whose conduct he was not responsible and of the details of which he was unaware. In any case the Legislature has not linked the punishment for the accessory with the nature of the principal felony but has provided the one maximum sentence for being an accessory after the fact to any felony. In my opinion, the conduct of the accessory alone is in question.” However, as the most senior officer on duty, the applicant was Burkett’s superior officer and responsible for the well-being of prisoners in police custody in that police station. While the assault by Burkett might have been a response to a difficult and challenging situation which developed quickly, the applicant acted deliberately to conceal criminal behaviour by another police officer. By assisting Burkett to escape detection for the offence, he made possible the circumstances in which Burkett committed the further offences. His dereliction of duty, if it went undetected, had the capacity to undermine public confidence in the integrity of the police service and the administration of justice. Ablitt was sentenced on a plea of guilty to one count of ‘Accessory after the fact’ to and ‘assault occasioning bodily harm’ and received a term of 15 months’ imprisonment, suspended after 5 months for two years. This was an example of how the Courts treat officers who have a disregard for the law, their responsibilities and their duties.
What Powers Do Police Have in Australia?
In Queensland, Police powers are governed by the Police Powers and Responsibilities Act also known as the (PPRA) established after the Fitzgerald Inquiry into police conduct in 1989. Prior to 1989 Police had powers under common law and more than 90 statutes, making it difficult for Police to effectively know their responsibilities. After the introduction of the Police Powers and Responsibilities legislation, these powers were consolidated . Section 809 of the Act provides for the enactment of regulations and in 2012 a regulation was introduced providing even greater detail. In May 1987, Acting Queensland Premier Bill Gunn ordered a Commission of Inquiry after the media began reporting on Police corruption, involving gambling and prostitution. Tony Fitzgerald QC was tasked with leading this Inquiry and it later became known as the ‘Fitzgerald Inquiry’ .
The Inquiry found that there was widespread corrupt conduct within the police force, evidence and admissions were being fabricated and Police were receiving bribes. The original Act was introduced in 1998 however, as it changed so much within the first two years, a new Act , the current Act was introduced in 2000.
Originally only expected to take six weeks, the Inquiry took almost two years investigating long term, systemic political corruption. Following the Inquiry four Government Ministers, Former Police Commissioner Sir Terence Lewis, Former Premier Joh Bjelke-Petersen and countless members of the police force were prosecuted, leading ultimately to the establishment of the Criminal Justice Commission (CJC) now known as the (CCC) Crime and Misconduct Commission.
In Other States and Territories
Police Powers and Responsibilities in New South Wales
Other ManualsThe Police also use have their own internal policies and use operational manuals to guide what they do, and how they do it. Such manuals are reference tools that help police officers correctly implement their policies and procedures. In Queensland the Police perform duties as directed by the Operational and Procedure Manual, the DERIE Manual and the Traffic Manual. The DERIE Manual outlines how QPS manages the recording of interviews and evidence. The Operational Procedures Manual outlines how QPS will conduct procedures including coronial matters, investigations, driving service vehicles and The Traffic Manual outlines how QPS conducts road safety activity, including speed checks, drink and drug driving checks, vehicle impounding and more.
The Operational Procedure Manual (OPM) The Operational Procedures Manual is issued pursuant to the provisions of s. 4.9: ‘Commissioner’s directions’ of the Police Service Administration Act . The aim of this Manual is to provide members with guidance and instruction for operational policing. It provides links to associated Service policies, Manuals, instructions and resources and requires local procedures to be developed at regional, district and station or establishment level. Members are to comply with the contents of this Manual so that their duties are discharged lawfully, ethically and efficiently and failure to comply with the contents may constitute grounds for disciplinary action. However, it is recognised in policing, many decisions must be made quickly having regard to diverse circumstances and it is not possible to instruct members on every possible scenario. Therefore, in accordance with the section titled ’Use of Manual’ of this Manual, the general policies and procedures may, where justified, be adapted to circumstances as they arise. The contents of this Manual will be continually reviewed and updated to ensure currency and consistency with the law and community expectations. Members are to make themselves familiar with the contents of this Manual in order to carry out the Service's functions and deliver an effective level of policing to the community. Let’s now consider three more cases where the need for balance was not met and this resulted in a death or serious injury of an individual taken into custody.
Miss Dhu Case
The Miss dhu case is another extreme example where failure of the Police to adequately fulfill their responsibilities, led to a death in custody, the death of Julieka Ivanna Dhu. In 2014, Miss Dhu was a 22-year-old Aboriginal Australian woman arrested in relation to unpaid fines.
Whilst in custody, Miss Dhu complained of pain and was taken to the hospital where hospital staff told Police that her complaints were exaggerated and associated with drug withdrawal. 2 days later Miss Dhu again complained to the police about her pain and could no longer stand. Police officers accused her of faking her condition and handcuffed her to the back of a prison van where she later died.
The official cause of death was an infection caused by an untreated fractured rib however, an internal Police investigation found that 11 officers had failed to comply with Police regulations and were guilty of misconduct, receiving written and oral warnings. A coronial inquest later found Miss Dhu had suffered “unprofessional and inhumane” handling by police and “deficient” treatment from the hospital staff. The Inquest also established that Police had been influenced by “pre-conceived ideas about aboriginal people” and recommended individuals no longer be imprisoned for unpaid fines.
In 2020, six years after the death of Miss Dhu, the Government of Western Australia ceased jailing people for unpaid fines.
Mr Ward Case
Another extreme case of mistreatment whilst in custody, sadly ending with the death of Mr Ian Ward, an Aboriginal Elder from Warburton in Western Australia. In 2008, Mr ward was arrested and charged by Police for ‘driving under the influence of alcohol’ and transported 570kms to the nearest Court where he was remanded in custody.
As a result, Mr Ward was to be transported to a prison 352kms away. The temperature was 47 Degrees that day and was noticed by Prison transport contractors driving the vehicle, to be laying on the floor of the van. The air-conditioning was not working that day and the contractors failed to stop the van to check on Mr Ward. Mr Ward later died and was found to have suffered a cut on his head from a fall and third degree burns on his stomach from where he lay in the prison van.
In 2011, the Western Australian Department of Corrective Services pleaded guilty to his death .
Henry v Thompson
In 1989, an Aboriginal man from Queensland Mr Henry, successfully sued three police officers for assaulting him in the Watchhouse, setting a precedent on the types of damages awarded against Police officers acting outside of their powers and responsibilities.
Mr Henry was arrested and taken away from dancing in a nightclub, for using ‘obscene language’. Mr Henry was subjected to inhumane treatment, police brutality and humiliation. Officers Doolan and Thompson first punched Mr Henry and when he tried to get away from the attack he was stopped by Smith, the Watchhouse manager before being kicked repeatedly, having his head jumped on by all three officers before Officer Doolan urinated on him. The Court in this case, awarded Mr Henry $25,000 in damages for the treatment however, the three officers involved appealed the decision for being ‘manifestly excessive’. The appeal was heard in the Supreme Court where Williams J, described the conduct as “inhuman” and “calculated to cause the greatest possible insult and humiliation. ” Williams J considered the definition from Lamb v Cotogno, that aggravated damages are ‘awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like’. He went on to say; “The act of urination in the course of an assault would…call for an award of aggravated damages. But when the guilty party is a police officer, a person in authority, and the act is performed in the presence of other senior ranking police officers, the incident cries out for an even higher award. And finally, when one adds into the case the racial overtones present here, then a jury assessment of the appropriate award for aggravated damages is largely unrestrained. It hardly lies in the mouths of the appellants to complain that the award is too high.”Highlighted here are just a few examples of what happens when Police fail to act within their responsibilities and serve to remind us of the importance of balance. In each of these instances highlighted above, the accused was either an innocent individual or an individual charged with a non-violent/non-serious offence and could have been dealt with differently.
Unfortunately, instances where Police officers are prosecuted or held accountable by the individuals, they have mistreated are rare. This lack of accountability is what keeps Police officers mistreating people. Personally, I have been mistreated by Police officers during almost every single arrest and placement in custody.
Personal Experience
Just recently I was arrested, mistreated and assaulted by Police. A group of indigenous individuals were arguing and two of those individuals raised their fists and were threatening to assault each other. I placed myself (at risk) between the two individuals and convinced them not to fight one another. I had asked both of them whether they had ever spent time in Lotus Glen (local correctional facility) of which they affirmed, and I told them that in order to avoid going back there, they would need to stop.
Shortly afterwards, local Police arrived at the scene and began threatening the group with the use of Capsicum spray if they did not disperse, before arresting one of the instigators. I told Police that this individual had not yet assaulted anyone and there was no need to arrest this individual as I had been a witness to the preceding incident. I was told I was being a ‘public nuisance’ and arrested.
Further, in the watchhouse I was placed into a cell of my own however, a short time later two indigenous individuals were placed into the cell with me. There was no toilet paper in this cell denying each of us, a ‘necessity of life’. More importantly, one of the indigenous individuals, an older man in his 50s or 60s began to experience chest pains.
I informed the Police via the intercom in the cell, (installed for medical emergencies), that this individual was experiencing chest pain and in need of medical attention immediately. I was told to ‘shut up and go to bed’. The Police then disconnected the intercom, and I was no longer able to use it to request medical attention.
I began banging on the cell door in order to get the attention of officers nearby, who told me to ‘pull my head in’ and asked me ‘who do you think you are? a humanitarian?”. After responding in the affirmative and continuing to bang on the door, officers finally approached the cell and indicated they would enter.
Upon entering the cell, I was told to ‘sit down’ and ‘shut up’ and I complied with the direction. The officers then went over to the man that was experiencing chest pains and began to force his confession, for what sounded like a theft offence whilst he was under medical duress. I informed the officers that this type of forced confession was wrong, was not admissible and that I was a witness to the mistreatment of the individual. I was then taken by the group of officers to another cell where I was assaulted, my head was slammed into the concrete wall and my arm had been twisted and folded behind my back. I began to request medical attention from staff afterwards, but these repeated requests were denied.
I have experienced similar treatment on many occasions in police custody and I have witnessed some terrible incidents. I have now dedicated my life to exposing these injustices, and preventing the continued mistreatment of individuals by police, educating as many individuals as is possible. I believe that a combination of civil action and private prosecutions will hold police accountable, responsible and liable, leading to more equal and just treatment.
What Is Reasonable Suspicion and Belief?
Some arrests and almost all searches conducted by police will rely on the establishment of a ‘reasonable suspicion’ or ‘belief’. An individual’s personal liberty must be carefully balanced with the rights of the Police to arrest or search an individual over ‘suspicions and/or beliefs. Durward SC DCJ in R v Varga defined reasonable suspicion, “The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced. If a young man is driving a smart car with some panel damage it is not sufficient to give rise to a reasonable suspicion.” George v Rockett The Court in George v Rocket , the leading authority when determining the difference between mere belief and reasonable suspicion, the High Court described clearly, that where a reasonable suspicion must exist to establish a right or to allow an act, there must be an objective test applied whereby, the court considers what would be in the mind of an ordinary person when presented with all of the facts.
Michael Daniel Rockett, from the office of the Special Prosecutor asserted in an application for a search warrant that, he had ‘reasonable grounds’ for suspecting some documents were in the possession of solicitor Q. D George. The documents were said to be written by Sir Terence Lewis. (The Former Police Commissioner who was later charged with criminal offences following the Fitzgerald Inquiry).
Rockett believed the documents would prove Sir Lewis had committed perjury in the Court allowing for his prosecution. The Magistrate allowed the search warrant however, the High Court later considered an appeal made by Q. D George and concluded that, the warrant was invalid in the absence of any information in the sworn complaint that may have satisfied the Magistrate of the ‘reasonable grounds’ for Rockett’s belief. Ultimately, the High Court held that Rockett’s ‘belief’ presented in his application was not enough and that he had not demonstrated a ‘suspicion on any reasonable grounds’.
What this case highlights are the importance of and differences between a ‘belief’ and ‘reasonable suspicion’. Police cannot act on a belief or a mere hunch, there is an objective test which must first be applied. The Police must be asked ‘why did you think this way?’ and ‘what evidence do you currently have that this is the case?’ This prevents Police from being able to stop, search and arrest almost anybody, anywhere, anytime for anything.
R v LR
In this case of R v LR , the Court considered whether an admission of guilt should be considered admissible in circumstances where the Police interviewed an individual accused of rape whilst intoxicated. In Sinclair v The King , Dixon J states that;
“a confession made by a defendant “more or less” under the influence of intoxicating liquor “is not inadmissible as evidence unless the degree of intoxication is so great as to deprive him of understanding what he was confessing”.
There is also provision in the Police Powers and Responsibilities Act which applies when a police officer “wants to question or continue to question” a person “who is apparently under the influence of liquor or a drug”, that requires an officer to delay question until “reasonably satisfied” that the influence of the liquor “no longer affects the person’s ability to understand his or her rights and to decide whether or not to answer questions” .
McPherson J considered the rules established in Sinclair v The King and states further, The Court imposes an objective criterion, there must be external evidence of indicia of alcohol and that it does not matter what the police officer ‘believes’, only if the indicia would be evident to reasonable person.
The confession of the accused in this case, was introduced during the trial and the accused was found guilty. Legal representatives for the accused appealed the decision on the basis that the confession should be excluded from evidence, as the officer who took the confession did not apply the ‘reasonable suspicion’ test and relied only on his belief that the accused was no longer intoxicated. The Court allowed the appeal, and the convictions were quashed.
R v N
The Court was asked to consider in R v N whether text messages found on a phone during an illegal search by Police should be declared admissible or not. Ultimately the Court was asked to determine whether the desirability of admitting the text messages as evidence, outweighed the undesirability of illegal and intrusive means of obtaining them. The Court in this case ruled that the material be deemed as inadmissible.
Police on this occasion were acting on a public nuisance complaint and had obtained information suggesting, there was drug use in the hotel room shared by N and her friends. The police were operating under the provisions of the (PPRA) and did not make an application for a warrant to search the hotel room. N was subjected to a strip search by an officer which produced a negative result (the first search). At this point the officer was just following orders and held no personal suspicions about N having drugs. Believing (wrongly) that drugs had been found elsewhere on the premises, the officer proceeded to search N’s handbag for any illicit items (the second search), where the officer found $305.55 in cash and the iPhone. Suspecting that the money was proceeds of crime, the officer then seized the iPhone to search it for any signs of use in connection with drug dealing (the third search). Incriminating text messages were found during the third search confirming that N had been engaging in the trafficking of drugs. There was no question that the first and second searches were legal, as the police responded to a complaint that included drug use and that, the police ‘reasonably suspected’ at the time there was evidence of drug use in the hotel. The question for the court was whether after searching the bag, there was enough ‘reasonable suspicion’ to search the phone. The Chief Justice on this occasion stated;“Free societies have a deeply rooted aversion to needless State intervention and interference with individual freedoms and civil liberties. This is reflected in the tight rein kept by the common law on police search and seizure powers for criminal investigation purposes. Truth and justice cannot be pursued at all costs or by any means. Democratic values such as personal integrity, privacy and private property rights, including possession and quite enjoyment, cannot always be sacrificed to meet law enforcement goals” .The Court ruled the evidence inadmissible. R v Peirson This case of R v Peirson also considered the admissibility of evidence obtained from a phone in relation to drug use, leading to the charge of ‘drug trafficking’ against Mr Peirson. Mr Peirson was stopped by Police after he emerged from a taxi in Brisbane’s Fortitude Valley, with a group of young people in possession of open alcohol bottles. Police acted pursuant to s 29 and s 30 of the Police Powers and Responsibilities Act , permitting an officer to search anything in the possession of a person detained required by the the officer, who ‘reasonably suspects’ the person has something on them that may be considered unlawful, a dangerous drug or that may be evidence of the commission of an indictable offence. Those sections provide relevantly: Section 29 - Searching persons without warrant(1) A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following;(a) stop and detain a person;(b) search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.Section 30 - Prescribed circumstances for searching persons without warrantThe prescribed circumstances for searching a person without a warrant are as follows;(a) the person has something that may be;(ii) an unlawful dangerous drug; or(vi) evidence of the commission of a seven-year imprisonment offence that may be concealed on the person or destroyed; …” Senior Constable Price was the arresting officer who saw Mr Peirson getting out of the taxi and approached Mr Peirson. His evidence was that he spoke to Mr Peirson and another man called Mr Shaughnessy while Sergeant Mitchell spoke to two or three others. He first spoke to Mr Peirson about drinking from an opened alcohol container and told him that was an offence. He then observes Mr Peirson unsteady on his feet, his pupils dilated, sweating a bit and “licking his lips profusely”. He also said that he was not smelling highly of alcohol. He then formed the view that Mr Peirson was under the influence of a drug rather than alcohol mainly because he was licking his lips.Sergeant Mitchell then indicated to him that he had located drugs on another man from the group, Price then detained Mr Peirson for a search, telling him he reasonably believed he had dangerous drugs on him and asking him to turn out his pockets. Mr Peirson had no drugs in his pockets but was visibly shaking and starting to sweat profusely on the upper lip. He had a mobile phone in his possession and Senior Constable Price asked him whether he had any drug related messages on it to which he replied: “Ah, there shouldn’t be” which is when the officer started looking into his mobile phone. Senior Constable Price said that, in his experience as an officer covering about 8 years patrolling in Fortitude Valley, people in possession of drugs use mobile phone text messages to obtain the drugs. He found some apparently drug related messages on the mobile phone, activated his recording device, gave Mr Peirson the standard warnings and recorded the balance of the encounter. The court held on this occasion that Police had a ‘reasonable suspicion’, and the evidence was allowed.
The Issue of Consent
In circumstances where Police have been given consent, they can undertake activities outside of their powers and responsibilities. They could ask you to show them your bag or ask you to empty your pockets and/or accompany them to the police station for example. Dalton J in Bossley asked and answered, where ‘consent’ to a search is given, “that will be an answer to any allegation of unlawfulness of a search” (referring to Malone v Metropolitan Police Commissioner) . In Halliday v Nevill & Anor, the majority held that a police officer had an implied license to enter the driveway of a premises that were not locked or barred by an obstruction in any way, to arrest a man and in Coco v R, the Court allowed an appeal against a conviction that involved the use of evidence obtained by means of a listening device installed and maintained within a private premises. Mason CJ and Brennan, Gaudron and McHugh JJ wrote, at 435-436: “In accordance with [the principle that every unauthorised entry upon private property is a trespass] a police officer who enters or remains on private property without the leave or licence of the person in possession or entitles to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law” and “It has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain on private property was intended.” R v Varga The applicant Benjamin Julian Varga (“the accused”) was charged with one count of trafficking in a dangerous drug, ten counts of supplying a dangerous drug, one count of possessing a dangerous drug and one count of possessing a thing used in connection with trafficking in a dangerous drug. A pre-trial application considered whether the police, in executing a lawfully issued search warrant, exceeded the powers provided by the warrant, by accessing information on a mobile phone that was found by police in the search of a residential premises. The search warrant authorised a search by police and authorised the seizure of property found in the premises at which the accused and others lived. The warrant named two other persons who were not present, the accused just happened to be there. The police found the accused mobile phone and inspected it. The officer asked the accused if he could look at the phone and the accused consented, providing his passcode to Police. An officer then informed him he had found some information in SMS text messages on the mobile phone that he believed were relevant to the commission of offences involving dangerous drugs. The court was asked to determine whether, the officers had the right to access the accused phone under s154 of the Police Powers and Responsibilities Act , as the warrant had no provision for accessing phones. Durward SC DCJ concluded, “If the information necessary to access the content of the mobile phone had not voluntarily or otherwise by consent been given to Pritchard then the police could not have obliged the accused, or any other person for that matter, to divulge the access information, other than by resort to the specific power provided by an order made by a magistrate or a judge pursuant to s154 . However, in this case the accused was co-operative. He responded to the questions asked about the mobile phone by volunteering the access information. Hence resort to an order pursuant to s154 was not necessary. It seems to me that he made a ‘conscious decision’ so to do”. Ultimately finding the phone search lawful, as the accused freely consented to the search.There are many authorities that deal with evidence unlawfully obtained pursuant to search warrants such as the case of R v Christensen wherein Holmes JA iterated “The importance of strict adherence to the statutory requirements in the context of search warrants has repeatedly been emphasised”. Bossley’s Case
Mr Bossley was in his early 20’s, attending a music festival in Brisbane when approached by plain clothes police. Detective Senior Caulfield was one of about 20 police officers in the area tasked to detect people in possession of illicit drugs in the crowd at the festival. On seeing Mr Bossley, the Detective thought he seemed excited, hyperactive and quite talkative compared to others and his overall impression was that was something out of the ordinary, he could be under the influence drugs or in possession of them.
The Detective then approached Mr Bossley and asked him whether he had any drugs on him to which, Mr Bossley replied in the negative. The Detective then noticed he had a bumbag and asked if he could take a look, Mr Bossley offered him the bumbag and the Detective opened the bag and found a clip seal bag containing pills, it was at this point Mr Bossley was detained for a search.
The Court found on this occasion that the Police did not have a ‘reasonable suspicion’ to search however, because Mr Bossley consented to the search of the bumbag, it was held that the search was legal. Police can ask questions of anyone by way of consent and do not need to comply with the responsibilities otherwise contained in the Police Powers and Responsibilities Act .
Still, it is not just what the accused believes is consent, the Court’s look at the behaviour of Police, Were they overpowering, applying pressure or forceful in any way and if they are, you may have a defence however, simply complying because you ‘think you have to’ is not enough and the Police often rely on the consent given by individuals when acting outside of their rights and responsibilities.
What Happens When Police Act Outside of Their Powers?
In circumstances where Police act unlawfully and/or outside of their powers, a few things can happen. Firstly, the evidence obtained illegally, such as a confession, text messages, physical evidence of drugs or illegal items can be declared inadmissible in Court, seriously affecting the outcome of any case brought against an accused person.
Secondly, any case brought against an accused person may be thrown out by the Court or not proceeded with, if the prosecution feels there is limited chances of success for example.
Thirdly, the officers involved may be investigated, suspended or stood down, could be held accountable and have criminal prosecution brought against them or they could be taken to account by an accused person through a civil action. I have considered some of these cases below.
Whitelaw v O’Sullivan
The O’Sullivan case considered the excessive use of force. In 2008, Michael O’Sullivan was found guilty in the Brisbane Magistrates Court of common assault. In 2007, Mr O'Sullivan was working as a police officer when he was called to a disturbance at Caesar's nightclub in Brisbane.
The accused was detained "for a breach of the peace" under s 50 of the Act . Mr O'Sullivan joined police officers Higgins and Arndt. Mr O'Sullivan sprayed the complainant twice with capsicum spray. Constable Arndt also sprayed the complainant with capsicum spray at the same time as Mr O'Sullivan sprayed the complainant the second time. After these three capsicum sprays, the complainant was on one knee on the ground. As he was getting up, Mr O'Sullivan hit him three times with his baton. Those three strikes were particularised as constituting the assault. The prosecution alleged that they were "excessive in the circumstances".
Mr O'Sullivan gave evidence that the complainant's group was noisy and aggressive. He saw the complainant's left arm move towards Constable Higgins in a threatening way. The complainant was a large man and was wiping capsicum spray from his eyes and turning his head. Mr O'Sullivan was concerned the complainant might assault him. He sprayed the complainant a second time, coinciding with a spray from Constable Arndt. The complainant, however, remained upright although bent over; he briefly went down on one knee and then got up. Mr O'Sullivan was concerned that the complainant might assault him or another police officer. He reached for his baton which was about 50 cm long.
In using the baton, Mr O'Sullivan was attempting to subdue the complainant to prevent him from getting up and assaulting police. He struck twice with the baton. When these two strikes did not subdue the complainant, he delivered a third strike. He tried to hit the complainant as hard as he could. Whilst using the baton, Mr O'Sullivan continued to direct the complainant to "Lay down on the ground". Only after the third baton strike did the complainant completely drop to the ground. Prior to using the baton, Mr O'Sullivan considered the complainant posed a very significant threat to his safety and that of other police officers as he still had the ability to carry out his threat of assaulting them.
Mr O’Sullivan appealed the finding to the District Court overturning his conviction however Stephen Allan Whitelaw was the investigating officer attached to the Crime and Misconduct Commission who prosecuted the officer and Mr Whitelaw sought leave to appeal the District Courts decision to overturn, given it involved important questions as to the provisions found in the Police Powers and Responsibilities Act and that Police should be held to account for their use of force. Ultimately, the Supreme Court overturned the District Judges finding and confirmed the Magistrates earlier conclusion, that the Officer was guilty of common assault.
The Magistrate, upon viewing the Council’s ‘City Safe’ CCTV footage stated, "The video quite clearly shows that [the complainant] did not move towards [the respondent] in a violent manner, prior to being sprayed for the first time…after being sprayed on the second occasion by [the respondent]….[the complainant] was bent right over, he crouched down" Also adding, "It is plain for all to see what he was doing and it wasn't striking towards a police officer. Furthermore, Arndt didn't step back, he remained where he was, which was precisely in front of [the complainant]." The magistrate considered s 24 of the Criminal Code (mistake of fact) however, He concluded beyond reasonable doubt that, on the evidence, even if Mr O'Sullivan was acting under an honest belief that he or his colleagues were about to be assaulted, such belief was not reasonable. He was in no position to carry out any threat of violence: "It would not be and was not reasonable to believe that he was going to assault them." The Exclusion of Evidence
There are actions Police may take that allow for the exclusion of evidence in certain circumstances mentioned above. Below, are some examples of exclusionary rules. Involuntary confessions can be excluded. This is not at the discretion of the Court either, it must be excluded based on the standard of ‘balance of probabilities.
R v Ridgeway
R v Ridgeway considered entrapment by the Police and is considered one of the leading cases regarding entrapment, as a defence in Australia. The offender was charged with a breach of section 233B(1)(c) of the Customs Act 1901 (Cth) for the importation of 140.4 grams of heroin. The charge was a result of a ‘controlled’ operation between the Australian Federal Police (AFP) and Malaysian Federal Police (MFP). The offender contacted an old friend, Lee, who he had met whilst serving a jail term in a South Australian prison for drug related offences. Upon release, Lee was deported to Malaysia and subsequently became an informant for the MFP. Once the offender was released, he contacted Lee to arrange to purchase heroin to import into Australia. Lee and a Malaysian police officer, acting with the knowledge and co-operation of the AFP, were given visas by the Australian High Commission in Malaysia, and imported a quantity of heroin into Australia. The heroin was cleared through Customs as arranged by the AFP and Australian Customs Service and upon delivery of the heroin the offender was apprehended. In this case the importation was supported by and encouraged by the AFP who arranged for the informant to travel with the heroin, and also knowingly allowed the heroin into the country clearing the heroin through customs. The AFP in doing this, were committing various trafficking offences themselves and so the offender in this case argued that he was ‘entrapped’. The High Court of Australia held in the Ridgeway case that there was no practical defence of entrapment. Although, the court did recognise that as a matter of public policy, courts must exercise a discretion to exclude any evidence of any offence that was brought about by unlawful conduct of law enforcement officers. The purpose of this discretion is to discourage such unlawful conduct by Police. It was further held that this discretion extends to circumstances where a criminal offence has been induced by improper conduct, not just unlawful conduct, by law enforcement. For Ridgeway, the High Court ultimately held that the evidence which proved that the heroin supplied to the appellant had been illegally imported and should be rejected. Their Honours drew attention to the ‘calculated’ and ‘grave’ actions of the AFP, especially that:• their actions constituted an offence in that the AFP allowed the drugs to be imported• the police officers involved had not been prosecuted though they, too, had committed an offence• there was no evidence of any official disapproval or retribution, and• the objective of the AFP’s criminal conduct would have been achieved if the evidence were admitted.The court weighed these factors against the public interest in Ridgeway’s conviction. They determined that the public interest could be satisfied in this case by the availability of a variety of offences that could be applied against the offender which did not involve illegally importing heroin. R v Foster
A trial Judge in R v Foster , considered whether an involuntary confession made to the Police, should be admitted as evidence. A 21-year-old indigenous man was convicted in New South Wales for maliciously setting fire toa High School building in Narooma. The prosecutions whole case rested on a seven-line confessional statement which the appellant had signed while being held in custody at the Narooma Police Station. The appellant said that the confession had been fabricated by the police and that they had threatened to take him "out the back of Narooma" and "bash" him as well as "pick up" his "young brother" so he signed the confession.
The confession was admitted into evidence at the appellant's trial despite his challenge to its voluntariness and his submission that the confession should be excluded in the trial judge's so-called fairness discretion pursuant to R v Lee.
Mr Foster appealed the decision and The High Court later acknowledged that the appellant had not been given an opportunity to contact a lawyer, the police at the time the appellant was arrested had no real evidence to justify the arrest and held that, it is unlawful to arrest a person solely for questioning.
It was clear from the police evidence that the unlawful arrest and detention of the appellant was purely for the purpose of questioning and the appellant was required to remain at the police station until the police had finished their questioning that was likely to carry with it an "implicit threat of continued unlawful detention unless and until the questions of the interviewing police are answered to their satisfaction."
The High Court overturned the Trial Judges decision to admit this evidence. In addition, their Honours indicated that the circumstances of this case were such that the evidence should have been excluded on the basis of the public policy discretion (Bunning v Cross ) because the discretion to exclude unlawfully obtained evidence on public policy grounds aims to reduce 'deliberate or reckless disregard for the law by those whose duty it is to enforce it... ‘.
Foster v R indicated clearly that unlawful detention is an important consideration for the trial judge's determination of exclusion on the discretionary grounds of unfairness as well as public policy. The majority of the High Court acknowledged that unlawful detention, may contain an implied threat to detain an accused until police questions have been answered to their satisfaction and such an acknowledgment will undoubtedly be relevant to trial judges' determinations of whether confessions are voluntarily made.
R v Keen
In cases where evidence may be obtained illegally through an unlawful search, the Court has discretion as to whether that evidence can be allowed. Consider the R v Keen case that involved finding Cannabis in a parked car. In this case, the Court found that the search of the car was unlawful, because it was not authorised under the Police Powers and Responsibilities Act allowing for the searching of ‘occupied’ vehicles because Mr Keen and Mr Hetet, were not passengers of the vehicle when it was searched by Police.
Snr Constable Troy Anthony Cameron and Snr Constable Christopher Michael Hurtz identified themselves and asked the applicant and Mr Hetet for their names. Mr Hetet said that he was the driver of the Barina. SC Cameron returned to the police car and conducted a name check with Toowoomba Police Communications. He returned to the Barina and searched the vehicle. During the search the officer found a small plastic tub that contained what appeared to be a small amount of cannabis, a small tub that contained what appeared to be a pink crystalline substance, a plastic water pipe and a large sports bag in the boot. Inside the bag he located two large vacuum sealed plastic bags that contained what appeared to be cannabis. Mr Hetet said the sports bag was his. Hetet said that the cannabis was his and that he put it in the bag. SC Cameron and SC Hurtz were brought into the operation “Kilo Agitator” by Det Snr Sgt Robb as a deliberate strategy. The plan was to make a “traffic” interception of the vehicle carrying the applicant. They would conduct a search of the vehicle and if, as believed, the vehicle contained dangerous drugs, the applicant would be arrested, and the dangerous drugs confiscated without alerting the applicant and others involved of the operation or presence of covert surveillance or to the extent of police knowledge about their business. Section 31 - Searching vehicles without warrant(1) A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following— (a) stop a vehicle.(b) detain a vehicle and the occupants of the vehicle;(c) search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.
The Court on this occasion allowed the evidence despite finding the search unlawful because the evidence was considered in the public interest to admit, as it was vital to the prosecution of Keen, the seriousness nature of the offences supporting the public interest discretionary rule and, the unlawfulness of the search was not deliberate and arose by mistake. In the particular circumstances of the present case, the public interest in bringing a wrongdoer to justice and the factors favouring admission of the evidence outweigh the factors supporting its exclusion.
Although the evidence was allowed in this case, there are other very similar cases involving the searches of motor vehicles, where the defendant was not a passenger of the vehicle, and the evidence was not admissible.
R v Versac In R v Versac it was conceded by the prosecution that s 31 did not authorise a search of a parked car by police without warrant. In that case, the police officer observed the applicant at a court hearing and suspected that the applicant may have been under the influence of heroin. The applicant was approached and gave responses to questions which the police officer considered evasive. The applicant said that he had been dropped off at court by a friend and denied that he possessed a motor vehicle however he had a set of keys in his hand. The police officer formed the belief that the vehicle which the keys would open would contain illicit drugs such as heroin. The suspicion that the vehicle contained drugs was founded on the applicant’s history, his demeanour, his possession of the keys and his evasive answers. Police subsequently used the electronic remote on the keys to locate the vehicle in a nearby car park. However, it appears that s 31 did not apply on this occasion because the applicant was not an occupant of the vehicle at the relevant time and the vehicle, and its occupants were not detained so as to authorise any search. R v Pohl Further, in R v Pohl it was conceded by the prosecution that s 31 did not authorise the search in another similar case. The applicant in that case was arrested for supplying a dangerous drug at a hotel.
The arrest was based on an anonymous tip that a man who the applicant was accompanying outside the hotel was intending to buy unlawful dangerous drugs at the hotel. Upon questioning, the applicant stated to police that he lived at a certain location and had walked to the hotel. The police knew from a review of CCTV footage that he had not walked to the hotel. Due to the false story, and the fact that no drugs had been found on the persons involved, the police formed the view that the drugs were in the vehicle in which the applicant had arrived, visible on the CCTV footage.
Using a remote keypad found in the applicant’s pocket, police located and unlocked a vehicle in the car park, which was searched. Again, the case seems to have proceeded on the basis that the applicant was not an occupant at the relevant time and the vehicle, and its occupants were not detained so as to authorise the search.
R v Jaudzems
In R v Jaudzemz , a question arose as to whether there were grounds to reasonably suspect, dangerous drugs were in a vehicle searched by Police. In that case, the Court held that officers did have a reasonable suspicion to search the vehicle. The vehicle, driven by the applicant was pulled over for a random breath test. While that was occurring, one of the police officers involved had a radio conversation with the Townsville area police communications. Communications informed him that an intelligence submission, stated that the driver of the vehicle may be involved in the supply and trafficking of amphetamines in the Cairns area. A further statement was made shortly afterwards that the driver was a ‘large scale’ supplier of ecstasy in Cairns and that the informant who had provided that information to police had been open and honest regarding the informant’s involvement. Cairns Supreme Court Justice Henry observed that there is a “…well-established principle regarding reasonable suspicion that there must exist some factual basis to reasonably ground the suspicion, but it is unnecessary that there exists proof of the fact reasonably suspected.” His Honour continued that:“The existence of apparently reliable information that one of four men in a vehicle pulled over at Ayr was an active drug trafficker in Cairns gave Constable F grounds that were reasonable in harbouring his suspicion unlawful dangerous drugs may have been in the vehicle.” In my view, on the balance of probabilities, there were grounds that were reasonable in the circumstances for SC Cameron, to reasonably suspect that there was something in the Barina that may have been a dangerous drug. SC Cameron had the required suspicion, and that suspicion was reasonable. Right to Silence
I recently engaged in a project known as LawToks. Short videos were created by Drama students from Central Queensland University, recreating everyday situations involving young people and Police. The aim of this project was to inform young people as to their rights and responsibilities when dealing with Police, carefully balancing the need to cooperate with the right not to speak without a care person or guardian present. One of these videos relates to Police questioning and your responsibility to provide your name and address if required by Police.
Rice v Connolly
The precedent and/or rule established in Rice v Connolly holds that there is no strict legal duty, to assist a Police officer prior to any arrest or caution. An individual is not obligated to provide any details to the Police, accompany them to any location such as a Police station or assist them with any enquiries.
Rice was spotted by an officer acting ‘suspiciously’ in an area known for a high rate of break-ins, some of which had occurred on the very same night. Originally, Rice was charged and convicted of ‘wilfully obstructing Police’ for failing to provide Police with his full name, his address and refusing to accompany the Police officer to a ‘police box’. The Officer told the Court Rice was sarcastic however, there was no suggestion that anything he provided to the Officer was false.
Lord Parker CJ allowed an appeal in this case and found:
“In my judgment there is is all the difference in the world between deliberately telling a false story something which on no view a citizen has the right to do and preserving silence or refusing to answer something which he has every right to do”
What this meant was that, if Rice had deliberately lied to the Officer on this occasion, it may very well have been considered as obstructing the Officer but because he simply refused to say anything at all, it was his right to do so. Rice was found not guilty on appeal.
Further, in considering police powers and responsibilities to question an individual at common law, Goff LJ, in Collins v Wilcock states plainly: “A Police officer has no power to require a man to answer him”
In 1975, the Australian Law reform Commission suggested Police should have powers to obtain particulars where there is reasonable suspicion however, if it transpires that the individual cannot help the Police, or where it cannot be proven that the individual does not actually have that information, they cannot be found guilty of an offence . Individuals will only be found guilty for an offence where it is proved beyond a reasonable doubt that they could help the Police and do not. Section 791 - Offence to contravene direction or requirement of police officer (1) This section applies if a person is given a requirement or direction under this Act and no other penalty is expressly provided for a contravention of the requirement or direction.
(2) A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse.
The Requirement to State Name and Address
Section 40 and 41 of the Police Powers and Responsibilities Act, provide for the requirment to state an individuals name and address and the prescribed circumstances under which, an individual MUST provide this information. Section 40 - Person may be required to state name and address (1) A police officer may require a person to state the person’s correct name and address in prescribed circumstances;(2) Also, the police officer may require the person to give evidence of the correctness of the stated name and address if, in the circumstances, it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated name or address or to otherwise be able to give the evidence. (3) A person does not commit an offence against section 791 if the person was required by a police officer to state the person’s name and address and the person is not proved; (a) for section 41 (a) or (b), to have committed the offence; or (b) for section 41 (f), to be the person named in the warrant, summons, order or court document; or (c) for section 41 (h), to have been involved or to be about to be involved in domestic violence or associated domestic violence; or (d) for section 41 (i) or (j), to have been able to help in the investigation. (4) Also, a person does not commit an offence against section 791 if;(a) the person was required by a police officer to state the person’s name and address for enforcing the Tobacco and Other Smoking Products Act 1998 in relation to the supply of a smoking product to a child; and (b) no-one is proved to have committed an offence against that Act. (5) In this section, "address" means current place of residence. Section 41 - Prescribed circumstances for requiring name and address The prescribed circumstances for requiring a person to state the person’s name and address are as follows;(a) a police officer finds the person committing an offence; (b) a police officer officer reasonably suspects the person has committed an offence, including an extradition offence; (c) a police officer is about to take;(i) the person’s identifying particulars under an identifying particulars notice or an order of a court made under section 471 or 514 ; or (ii) a DNA sample from the person under a DNA sample notice or an order made under section 484 , 485 , 488 or 514 ; (d) an authorised examiner is about to perform a non-medical examination under a non-medical examination notice or under section 514 ; (e) a police officer is about to give, is giving, or has given a person a noise abatement direction, an initial nuisance direction or a final nuisance direction; (f) a police officer is attempting to enforce a warrant, forensic procedure order or registered corresponding forensic procedure order or serve on a person— (i) a forensic procedure order or registered corresponding forensic procedure order; or (ii) a summons; or (iii) another court document; (g) a police officer officer reasonably believes obtaining the person’s name and address is necessary for the administration or enforcement of an Act prescribed under a regulation for this section; (h) a police officer officer reasonably suspects the person has been or is about to be involved in domestic violence or associated domestic violence; (i) a police officer officer reasonably suspects the person may be able to help in the investigation of— (i) domestic violence or associated domestic violence; or (ii) a relevant vehicle incident; (j) a police officer officer reasonably suspects the person may be able to help in the investigation of an alleged indictable offence because the person was near the place where the alleged offence happened before, when, or soon after it happened; (k) the person is the person in control of a vehicle that is stationary on a road or has been stopped under section 60 ; (l) under chapter 17, a qualified person for performing a forensic procedure is about to perform the forensic procedure on the person; (m) a police officer is about to give, is giving, or has given a person a police banning notice under chapter 19, part 5A; (n) a police officer is about to give, is giving, or has given a person any of the following under the Peace and Good Behaviour Act 1982;(i) a public safety order; (ii) a restricted premises order; (iii) a fortification removal order; (o) a police officer reasonably suspects a person has consorted, is consorting, or is likely to consort with 1 or more recognised offenders.
Again, we apply the objective test from George v Rockett when determining whether is a reasonable suspicion. Most of the language provided in the above sections of the Police Powers and Responsibilities Act , includes ‘reasonable suspicion’ and ‘reasonably suspects’.
Safeguards For Oral Directions
Where oral directions are to be given by an officer, there are certain responsibilities Police must follow such as; telling the individual that they could be charged with an offence for failing to follow a lawful direction and allowing the individual to adequately explain what they are doing and must give the individual reasonable time to comply. Section 633 - Safeguards for oral directions or requirements (1) This section applies if a police officer gives someone an oral direction or makes an oral requirement under this Act. (2) If the person fails to comply with the direction or requirement, a police officer must, if practicable, warn the person;(a) it is an offence to fail to comply with the direction or requirement, unless the person has a reasonable excuse; and (b) the person may be arrested for the offence. (3) The police officer must give the person a further reasonable opportunity to comply with the direction or requirement.
These provisions have been placed into the Act in order to safeguard individuals against unlawful conduct by the Police and prevent any arbitrary use of Police powers against private citizens. Of course, when we look at Section 633, Sub-section two , the reference to ‘if practicable’ provides officers with some defence, when a warning has not been given however, a subjective test will apply to all facts and evidence. The below section applies where a person is committing or has committed a summary offence. Section 634 - Safeguards for declared offences under Summary Offences Act 2005 (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;(a) if the offence involves the person’s presence at a place, why the person was at the place; or (b) if the offence involves entering a place, why the person entered the place; or (c) if the offence involves any of the following, why the person did the relevant thing;(i) parachuting or hang-gliding onto a building or structure; (ii) Base-jumping or hang-gliding from a building or structure; (iii) climbing up or down the outside of a building or a structure; (iv) abseiling from a building or structure; or (d) if the offence involves possession of a graffiti instrument or an implement, why the person was in possession of the graffiti instrument or implement at the relevant time; or (e) if the offence involves possession of a thing that is reasonably suspected of having been stolen or unlawfully obtained—how the person came to have possession of the thing. (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; Example for paragraph (c)— It may not be reasonably practicable to give the person a reasonable opportunity to give an explanation because of the person’s conduct, for example, the person may be struggling or speaking loudly without stopping. 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 .
There are also provisions within the Act , for Police to provide their details, especially in circumstance where Police are not in uniform and cannot be clearly identified as Police. Section 637 - Supplying police officer’s details (1) This section applies if a police officer;(a) searches or arrests a person; or (b) searches a vehicle; or (c) searches a place, other than a public place; or (d) seizes any property; or (e) stops or detains a person or vehicle; or (f) requires a person to state his or her name and address; or (g) gives to a person a direction under section 48 or 177 ; or (h) enters a place to make an inquiry or investigation or to serve a document; or (i) exercises a power as a public official. (2) The police officer must, as soon as reasonably practicable, inform the person the subject of the power of the following;(a) if the police officer is not in uniform;(b) that he or she is a police officer; and (iii) his or her name, rank and station; (c) if the police officer is in uniform—his or her name, rank and station. (3) If the police officer is not in uniform, the police officer must also produce for inspection his or her identity card. (4) If the police officer is searching a person, vehicle or place, other than under a search warrant, the police officer must state the purpose of the search and the reason for seizing any property. (5) If 2 or more police officers are searching the vehicle or place, only the senior police officer present is required to comply with subsections (2) to (4). (6) However, if a person asks another police officer for the information mentioned in subsection (2) or to produce an identity card, the police officer must give to the person the information requested or produce the identity card.
Move-on Powers
Prior to 2006, there have been incremental expansions in regard to move-on powers. These powers were first introduced in 1997 under the first Police Powers and Responsibilities Act and applied to certain types of stores, train stations and other places declared by Local Governments as ‘Move-on’ zones. In 2000 , they were expanded to include larger venues such as racing venues and malls however, these types of places included a large number of areas regularly visited by indigenous Australians and were seen as racially discriminative.
Move-on powers seemed to disproportionately target Indigenous Australian and deal with ‘indigenous problems’ such as drinking in public and sitting in thorough fares in large groups however, these activities were/are activities which indigenous Australians would regularly do within their own homes, and it was argued that they deserved rights to do these things in public/on country.
The Move-on powers were enforced state-wide in Queensland in 2006 but only apply to minor forms of disorder. In New South Wales however, move-on orders were used for much more serious offences. In 1988, Police used move-on powers in areas known as drug hotspots in order to prevent individuals purchasing drugs although these powers have since been repealed, s197 of the Law Enforcement Responsibilities Act currently provides for move-on powers in NSW.
A review conducted by the Crime and Misconduct Commission in 2010 over a two-year period found that, young males under the age of 13 are more likely to be given a move-on direction with some given to six-year old’s and that 42% of all move-on directions were given to indigenous Australians, making them 20x more likely to receive a move-on direction.
A move-on direction can be issue because of a person’s behaviour and can also apply to the mere presence of a person. Sections 633 and 637 of the Act , would also apply when an officer issues a move-on direction.
If Police contravene any of the provisions under the Act, their actions could be considered unlawful, and they may face prosecution. In both Rowe v Kemper and Whitelaw v O’Sullivan , Police had proceedings brought against them for what was considered unlawful conduct and the charges against Rowe and Whitelaw were dismissed. Section 46 - When power applies to behaviour (1) A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s behaviour is or has been— (a) causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or (b) interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or (c) disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place; or (d) disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place. (2) If the regulated place is a public place, other than a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s behaviour has or had the effect mentioned in subsection (1)(a), (b), (c) or (d) in the part of the public place at or near where the person then is. (2A) If the regulated place is a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s behaviour has or had the effect mentioned in subsection (1)(a), (b), (c) or (d) in any public place located in the safe night precinct. (3) Subsection(1)(b) applies to premises used for trade or business only if the occupier of the premises complains about the person’s behaviour. (4) However, subsections(1)(b) and (3) do not limit subsection (1)(a), (c) and (d). (5) This part also applies to a person in a regulated place if a police officer reasonably suspects that, because of the person’s behaviour, the person is soliciting for prostitution. (6) For this part, the person’s behaviour is a relevant act. Section 47 - When Power Applies to a Person’s Presence (1) A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s presence is or has been;(a) causing anxiety to a person entering, at, or leaving the place, reasonably arising in all the circumstances; or (b) interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or (c) disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place. (2) If the regulated place is a public place, other than a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s presence has or had the effect mentioned in subsection (1) (a), (b) or (c) in the part of the public place at or near where the person then is. (2A) If the regulated place is a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the place only if the person’s presence has or had the effect mentioned in subsection (1) (a), (b) or (c) in any public place located in the safe night precinct. (3) Subsection (1) (b) applies to premises used for trade or business only if the occupier of the premises complains about the person’s presence. (4) However, subsections (1) (b) and (3) do not limit subsection (1) (a) and (c).(5) For this part, the person’s presence is a "relevant act".
Rowe v Kemper The Rowe v Kemper case highlights the difficulty police officers often face in determining if, when, and how to exercise their "move-on" power under the Police Powers and Responsibilities Act 2000 (Qld) ("the Act") in respect of members of the public behaving in a non-conforming manner. Rowe, a 65-year-old homeless man was washing his clothes in a public toilet block in the Queens Street Mall, Brisbane when a Council cleaner Mr Demane, approached Mr Rowe and asked him to leave so that he could clean the facility. Mr Rowe attempted to negotiate with Mr Demane about staying longer however, there began an argument, and the Police were called.
Four Police officers arrived and told Mr Rowe he would need to leave however, Mr Rowe became defiant and told the Police he was not doing anything wrong and did not have to leave, so Police issued him with a formal direction to leave before arresting him and charging him with failure to follow a Police direction and Assault/Obstruct Police in the performance of their duties. Mr Rowe was originally found guilty of an offence against s 445(2) of the Act (contravening a police direction given under the Act) and of an offence against s 444(1) of the Act (obstructing the respondent, Constable Kemper, in the performance of his duties) however, Rowe was acquitted of both offences on appeal with the Court determining the arrest unlawful. Interestingly, Police were of the opinion Mr Rowe was going to assault them, informing their decision to arrest him without giving him the opportunity to comply with the direction . The Police told the Court they formed the view Mr Rowe would assault them as he was being verbally defiant, but the Court held that any reasonable suspicion he was going to assault them, could only be based on past and present actions, not those in the future and Mr Rowe had not yet shown any signs of aggression.
The Court also held that a move-on direction was unnecessary and that if it was necessary for Mr Demane to clean the toilets without Mr Rowe being present, that it was only necessary to prevent Mr Rowe from entering whilst cleaning was being conducted and not the full 8 hours as per the direction.
Justice Holmes found that Mr Rowe did not contravene the direction of Police because he was only warned he could be arrested, and not that failure to comply constituted an offence whilst Justice McKenzie also found, that they did not give him a reason to comply and that, as a 65-year-old man, he needed time to comply and: “Police officers whose lot is to maintain good order and public safety in public places face a multitude of situations which often develop suddenly and have potentially unpredictable outcomes. Officers are required to make assessments, in real time, of the nature of the behaviour and how to respond to it so that good order is restored by means appropriate in the circumstances. Not infrequently, as in this case, the person whose conduct attracts attention will be disposed to be unco-operative when common-sense would suggest that a degree of give and take would avoid an escalated confrontation”. Justice McMurdo P held that: “Constable Kemper reacted disproportionately to Mr Rowe's argumentative, non-conforming behaviour in giving him the direction in unreasonably broad terms. His direction to Mr Rowe under section 39 , was not reasonable in the circumstances and was not a "direction under this Act" in terms of s 445(1) . He also acted unreasonably in the circumstances in not complying with, at least, s 391(3) (giving a reasonable opportunity to comply with the direction when it was practicable to do so) before purporting to arrest Mr Rowe under s 445(2) . It was unreasonable for Constable Kemper to have suspected that Mr Rowe had committed any offence against s 445(2) for contravening his direction so soon after he had given it.” This case not only highlights the importance of Police responsibilities when issuing move-on orders to individuals but also, making other directions as well. If the Police issue a direction, it must be done so within their powers given to them under the Act .
Tucs v Manley It was held in this case that a police officer may exercise the power under section 39 of the Act to give "any direction that is reasonable in the circumstances" to a person "doing a relevant act" with a "relevant act" including, where a police officer reasonably suspects a person's behaviour to fall within one of the behaviours described in section 37(1)(a) to (d) .
This follows from the clear terms of s 37(1) that, before relying on s 37(1) to exercise the "move on" power under section 39 , the police officer must personally form the suspicion that the person's behaviour is or has been within one of the categories of behaviour described in s 37(1)(a) to (d) and that suspicion must be objectively reasonable. That is, ‘it must be based on facts which would create a reasonable suspicion in the mind of a reasonable person’.
Veivers v Roberts
In Veivers v Roberts; ex parte Veivers , the Court held that even where a person was arrested but later acquitted of an offence against the provisions of the Vagrants, Gaming and Other Offences Act, the person could still be convicted of any reactive offence such as resisting the arresting police officer in the execution of his duty under section 59 of the Police Act 1937-1978 or obstruct Police if, at the time of the arrest, the police officer had reasonable grounds to believe the offence had been committed.
What this means is that although an individual may be found not guilty of an offence for which they are arrested and/or the arrest may be considered u lawful, that individual could still be liable for other offences such evading police or assault etc.
Arrest Powers
ICPCR article 9 (1) provides that, ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with procedure as are established by law’.
ICPCR article 9 (2) provides that, anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him’.
This rule is also established at common law and sections 391 and 392 of the PPRA.
Section 391 - Information to be given to arrested person(1) A police officer who arrests a person, whether or not under a warrant, must, as soon as is reasonably practicable after the arrest, inform the person that the person is under arrest and of the nature of the offence for which the person is arrested.(2) A police officer who arrests a person with a warrant must inform the person that the person is under arrest and of the nature of the warrant.(3) Before the person is released from police custody, a police officer must give the person, in writing;(a) the name, rank and station of the arresting officer; and(b) if the person was arrested under section 365A(1), the name, rank and station of the instructing officer.Section 392 - Parent and particular chief executives to be advised of arrest or service of notice to appear(1) A police officer who arrests a child must promptly advise the persons mentioned in subsection (3) of the arrest and whereabouts of the child.(2) A police officer who has served a notice to appear on a child must promptly advise the persons mentioned in subsection (3) of the service of the notice to appear.(3) The persons to be notified are;(a) a parent of the child, unless no parent of the child can be contacted after making all reasonable inquiries; and(b) the chief executive (communities) or a person, nominated by that chief executive for the purpose, who holds an office within the department for which the chief executive has responsibility; and(c) if the chief executive (child safety) has custody or guardianship of the child under the Child Protection Act 1999, that chief executive or a person, nominated by that chief executive for the purpose, who holds an office in the department for which the chief executive has responsibility.(4) If no parent of the child can be contacted after making all reasonable inquiries, a police officer must make a record of the inquiries made.(5) Subsections (1), (2) and (4) do not apply in relation to a child if a police officer believes on reasonable grounds that the child is an adult.(6) In deciding whether the police officer had the reasonable grounds, a court may have regard to the child’s apparent age and the circumstances of the arrest or service of the notice.(7) In this section parent;(a) means a parent within the meaning of the Youth Justice Act 1992, schedule 4; and(b) includes a person who is apparently a parent of a child.
Wheatley v Lodge
The Wheatley case considered whether the police had sufficiently informed a deaf man, under the influence of alcohol that he was under arrest.
In this case Lodge, a deaf man driving a motor vehicle had been stopped by police and submitted to a roadside breath test. The breath test indicated that Lodge was under the influence of alcohol, and he was placed under arrest. The Court later considered whether the arrest was lawful given that Mr Lodge, being deaf, did not understand at the time that he was under arrest.
It was considered whether the officer took reasonable steps to communicate with the man using spoken words and actions and that under all of the circumstances, the arrest was found to be lawful because the officers explanation was sufficient, concluding that even if a defendant was not aware that they were being arrested due to deafness or an inability to understand English, it was not the fault of the officer and the Court would only consider whether the officer took reasonable steps to communicate.
Knowing whether or not an individual is lawfully under arrest is important in cases where it is alleged the individual either obstructed police, resisted arrest or evaded police altogether. Further though, it is extremely important that individuals know if they are or are not under arrest as the police have an obligation to provide safeguards if an individual is under arrest. These safeguards do not apply when the individual is not under arrest.
If the legality of the arrest is questioned, a court must consider whether an arrest occurred and when a court is to determines whether evidence is admitted or not, it is also relevant.
When Does an Arrest Occur?
In Lavery , the Court considered further, whether an individual was at liberty to move and whether or not they were under arrest, concluding that; ‘A person is arrested when police make it plain to him or her that he or she is not free to leave’ .
In Michaels v the Queen , the Court held that an arrest occurred when an arrested person has been; ‘Deprived of liberty to go where he or she pleases .’
Eatts v Dawson (1990) 21 FCR 166 The case of Eatts v Dawson considered whether the death of Mr Gundy (mentioned earlier ), should be investigated by the Royal Commission of deaths in custody. The New South Wales Government submitted that the case fell within the terms of reference of the Royal Commissioner as a death whilst in police custody, adding that "in a real sense" Mr Gundy and every other occupant of the house at 193 Sydenham Road was in the custody of police officers at the relevant time. No submissions to the contrary were offered by counsel for the Police Association of New South Wales and the matter was added to the list of deaths for investigation by the Commission. the Court was asked to consider the definition of ‘custody’ and isolated then, three dictionary definitions of “Custody”: The Oxford English Dictionary defines "custody" as;
1. safe-keeping, protection, defence; charge, care, guardianship ... 2. the keeping of the officers of justice (for some presumed offence against the law); confinement, imprisonment, durance.
In the Macquarie Dictionary, custody is defined as follows;
1. keeping; guardianship; care: in the custody of her father.2. the keeping or charge of officers of the law: the car was held in the custody of the police3. imprisonment: he was taken into custody.
Further, in Webster's New International Dictionary (2nd ed), the three meanings given for "custody" are;1. a keeping or guarding; care, watch, inspection, for keeping, preservation or security.2. judicial or penal safe keeping; control of a thing or person with such actual or constructive possession as fulfils the purpose of the law or duty requiring it; specif., as to persons, imprisonment, durance; as to things, charge.3. state of being guarded and watched to prevent escape.
Is an Invitation to Accompany Police Considered an Arrest?
R v Inwood One of the most important aspects of arresting an individual is indicating to the individual that they are under arrest. In R v Inwood the Court heard that Inwood attended a police station voluntarily, to answer questions regarding a theft. At the conclusion of the questioning, an officer informed Inwood that he would be charged with theft, and began to take his fingerprints without informing him that he was being placed under arrest. Inwood then attempted to leave the police station and assaulted a number of police officers in the process. On appeal against his conviction, the Court considered whether there was infact a lawful arrest prior to, Inwood’s attempts to leave the police station. The Court of Appeal ultimately held, that it was not clearly communicated to Inwood that he was under arrest. In this case, the Court established that there is no magical formula resolving the issue of whether or not an arrest has occurred, all circumstances must be considered and specifically, the Court must consider whether the individual was able to exercise their right to leave.
The Judge stated;“It all depends on the circumstances of any particular case whether in fact it has been shown that a man has been arrested, and the court considers it unwise to say that there should be any particular formula followed. No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man. ” Alderson v Booth
This Alderson v Booth case considered an appeal by prosecution of an earlier judgment of a Court, that determined Mr Booth was not under arrest when providing a blood sample to the police and that the blood sample given whilst not under arrest, could not be relied upon as evidence of a drink driving offence.
Mr Booth was the driver of a vehicle involved in a motor vehicle accident with another vehicle and was questioned by officer Alderson, who required Booth to provide a specimen of breath. Booth complied with the direction and the test returned a positive reading. The constable informed the defendant of the result of the test and said: “I shall have to ask you to come to the police station for further tests.”
The defendant voluntarily accompanied the constable to a police station where he was given an opportunity to provide another specimen of breath returning a positive reading. The officer then required the defendant to provide a blood sample and the defendant agreed. Upon analysis, the sample of blood provided contained an amount of alcohol that exceeded the prescribed limit.
The justices were of opinion that when the defendant accompanied the constable to the police station, it was not made clear to him either physically or by word of mouth that he was under compulsion. They considered that compulsion was a necessary element of arrest, and they therefore did not regard the defendant as a person who had been arrested. As a consequence, they dismissed the appeal. Harris Case
The Harris case considered whether a fear of police should be considered when determining whether or not the individual was under arrest. The Court held that fear of police was not to be considered and all that mattered, was whether the police indicated the individual was under arrest.
O’Donaghue Case
O’donoghue considered circumstances where an individual thought they were under arrest and for that reason, followed an officer’s requests.
Polyukhovich v Commonwealth
In 1990, Ivan Polyukhovich, then seventy-three years old and residing in Adelaide became the first and only person arrested and charged under Australia’s War Crimes Act . Polyukhovich was accused of helping the Nazis, massacre nine hundred men, women and children in Ukraine.
Polyukhovich claimed that he did not have a choice which established what is now referred to as ‘the Polyukovich test ’. the test is to consider, ‘would a reasonable person think, they no longer have a choice? and would a reasonable person make that decision? confirming that all of the circumstances apply. After a nine-week trial, a jury found Ivan Polyukhovich not guilty. Trotter, Sutherland Jordan Case
Another case, that of Trotter, Sutherland Jordan considered whether the entering of a house by a number of officers indicated that an individual was under arrest. The Court held that in the circumstances it was reasonable to assume the individual was no longer free and that they were under arrest.
Byczho Case
The Byczho case considered whether the words ‘you must come with us’ indicated an individual was under arrest and no longer at liberty. The police officers in this case did not clearly indicate the individual was under arrest and did not say words to that effect however, the Court held that the words that were spoken by police were a direction.
Hatzinikolaou v Snape
This case again considers what constitutes an arrest. The Court considered whether the placing of a police officers hand on an individuals shoulder followed by the words ‘would you mind coming with us’, would indicate to a reasonable person, that they were under arrest.
Ultimately, an arrest can occur with words or actions. It is important to remember that an arrest, although authorised by the police, is an assault. If police do not follow the formalities and act within their powers and responsibilities it could be considered an unlawful arrest and an assault.
A Deprivation of Liberty Must Occur
The following cases considered further, the lawfulness of arrest, whether arrest was justified under the circumstances and whether the police acted within their powers, satisfying the formalities.
O’Brien v O’Brien (1992) 80 NTR 1
The Court considered whether an individual once under arrest, could be charged with escaping. The circumstances of this case were that an individual who had been pulled over by police for a breath test ran away from police, after first being given permission to exit the vehicle and urinate on a tree.
The defendant in this case claimed that as he was free to urinate and had permission to exit the vehicle and move freely that he was not under arrest. After considering the circumstances however, the Court decided that he had been placed under arrest and was under arrest at the time he was allowed to urinate on the tree.
Whitelaw v O’Sullivan
As mentioned previously, Whitelaw v O’Sullivan considered the excessive use of force by police officers and whether Mr O’Sullivan was lawfully under arrest when the excessive use of force occurred.
Bulsey & Anor v State of Queensland
The Bulsey case considered whether there was a need for a formula when determining who or when an individual should be placed under arrest, and whether an arresting officer need hold reasonable suspicion that the individual under arrest committed an offence. Early on the morning of 27 November 2004, police officers and six armed members of the “Special Emergency Response Team” wearing black helmets and masks, forcibly entered the home of Bulsey, took him from his bed, placed him on the floor, handcuffed him, and dragged him out to the street, before transporting him to Townsville. In Townsville, He was held in custody and questioned, charged with unlawful assembly, and remanded in custody. Police subsequently withdrew that charge and instead charged him with riotous assembly and destruction of a building. In the subsequent committal proceedings, the police ultimately conceded that it did not have a case against him, and he was released. Prior to the arrest, Mr Wotton and Mr Bulsey made emotional statements critical of police, regarding the recent death in custody of a Palm Island man, Mr Doomadgee after the Palm Island Chairperson disclosed a medical opinion, that Mr Doomadgee died from internal bleeding, caused by a rupture of his liver as a consequence of a compressive force applied by police. Mr Wotton accused Senior Sergeant Hurley of murdering Mr Doomadgee and a riot broke out resulting in the burning down of the police station. Mr Bulsey unsuccessfully in the first instance, sued the State of Queensland for damages relating to the assault and unlawful imprisonment with the Court accepting “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 ’, and that “it is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power ”. However, during an appeal the Court determined that Detective Miles, who was found to hold the suspicion required by that provision, did not arrest Mr Bulsey and the police officer who did arrest Mr Bulsey was not found to hold the required suspicion and Mr Bulsey was awarded more than 165,000 in damages. Detective Miles was stationed in Townsville when he decided that Mr Bulsey should be arrested and remained there when he made orders for other police officers to make the arrest on Palm Island. Atkinson J stated; “I wish to add that the treatment of the appellants breached their most fundamental right, the right to personal liberty which is the most basic and fundamental of the human rights recognised by the common law. ” And;‘Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities’. The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. ” Concluding that;“The appellants in this case were not treated as one might expect in a civilised society governed by the rule of law and it is appropriate that they should be adequately compensated for the grievous wrong done to them .” Reg v Galvin
Reg v Galvin considered decisions relating to a charge of assaulting police during the execution of their duties. In the earlier case of Reg. v. Galvin the Court held that in order to substantiate the charge, it was sufficient enough for the Crown to prove an assault upon a person who was proved to have been at the time of the assault, a member of the police force then acting in the due execution of his duty and that the prosecution need not prove the defendant knew they were an officer performing their duty.
The decision conceded the right of a person charged with such an offence to exculpate himself by establishing "on the balance of probabilities that he acted reasonably in the bona fide belief, based on reasonable grounds, that the police officer was in fact unlawfully assaulting or otherwise interfering with him and that, had the facts been as the accused supposed them to be, his own actions would have been lawful and innocent".
In the second Galvin Case however, a Court of five judges was especially assembled to reconsider the earlier decision and a majority of the Court rejected the view which had been taken earlier and that the prosecution must establish the intent, and that they must intend to assault and must have intended to assault an officer in the execution of his duty, as these were important elements.
The Queen v Reynhoudt
In the Queen v Reynhoudt it was further established that an individual placed under arrest, does not need to know that it is a police officer making the arrest. Arrests can be made by members of the public and even security guards.
The defendant on this occasion had been charged with assaulting a police officer in the execution of the officer’s duty and the Court directed the jury to consider the judgement and rule established in the first Galvin case which had since been overturned.
The majority of the High Court allowed an appeal by the Attorney-General and approved the following statement: “The charge was not assaulting them knowing them to be in execution of their duty but assaulting them being in the execution of their duty.”
In R v K it was held; “A police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to case to be acting therein.” If a police officer is exceeding his duty, resistance to him is not an assault. When a police officer illegally arrests a person, he is not engaged in the discharge of his duties. It is sufficient for the police officer to touch the person to be arrested and at the same time tell him that he is under arrest and where possible state the act for which arrest is made. If the defendant is touched there is an arrest even though the defendant is not grasped and even though the defendant is stronger than the police officer arresting him and succeeds in making off. Trobridge v Hardy
The Hardy case is another example of an individual taking civil action against a police officer to recover damages for assault, malicious arrest and wrongful imprisonment.
Trobridge is a taxi driver charged with refusing to give his name and address to the defendant, police officer Hardy. At the trial, there was a conflict between the Trobridge and Hardy’s evidence however, the Court accepted Trobridge’s evidence, supported by two witnesses.
Mr Trobridge was driving a taxi in Perth, hailed from the kerb by two passengers, stopped his car, and backed it towards them. As he opened the door for them Hardy, who was in plain clothes, approached. Thinking he wished to hire the taxi, the Trobridge said: "Excuse me, I am afraid these people hired the taxi first." Hardy replied: "Never mind about you Police here! What the hell are you doing here? You have no bloody right to be here."
Trobridge asked if he could take the passengers and was told that he would not be allowed. Hardy then demanded his name and address. Trobridge asked what he was being charged with and Hardy said, "Plying for hire", Trobridge then gave Hardy a business card with his details on it and began taking the details of the two passengers who witnessed the event.
Hardy then grabbed him by the shoulder and said: "How much longer are you going to be? The police are not going to wait all night for you." Trobridge said "I won't be a moment". Before Hardy "thumped him again severely on the shoulder” and said, "You are under arrest." "If you hesitate one moment, I will handcuff you."
He was then arrested and taken to the police station. The witnesses protested and wished to go to the police station in the cab, but Hardy refused to allow them to do so. He waved the business card in the air and said: "This doesn't mean a thing to me, nor what you people saw or heard We're not interested in bloody witnesses."
On arrival at the police station Trobridge was searched with considerable violence and was struck a severe blow on the neck. He was later released, charged with refusing to give his name and address.
Trobridge was found not guilty of failing to provide his name and address and the High Court ruled in his favour awarding damages. It may be necessary in a case in which the validity of arrest is an issue, to tell the jury that they can only be satisfied that the police officer was acting in the execution his duty if satisfied beyond a reasonable doubt that the arrest was lawful. If the police officer uses excessive force, he is not acting in the execution of his duty . When Can Police Arrest You for Questioning?
Police can only arrest an individual for questioning only if they are suspected of committing an indictable offence. Indictable offences are serious offences. If an individual is arrested without proof they are involved with an offence or know about an offence, the arrest may be considered unlawful.
How Long Can Police Hold You for Questioning?
Generally, the Police can hold you for a period of 8 hours before a request is made to a Magistrate for an extension. This 8-hour period allows 4 hours for questioning and a 4-hour period of arrest and processing. Any extension allowed by a Magistrate must not exceed 12 hours and must be reasonable. Reasonable periods are set out in s404
Extensions can be allowed when an individual is intoxicated or under the influence of a dangerous drug/alcohol. As previously mentioned, police must be satisfied that an individual is of a sound mind/able to understand the officer prior to any questioning. Section 403 - Initial period of detention for investigation or questioning 1) A police officer may detain a person for a reasonable time to investigate, or question the person about;(a) if the person is in custody following an arrest for an indictable offence; the offence for which the person was arrested; or (b) in any case, any indictable offence the person is suspected of having committed, whether or not the offence for which the person is in custody. (2) However, the person must not be detained under this part for more than 8 hours, unless the detention period is extended under this division. (3) If this part applies to the person because of section 398 (b) or (c) , the person must be returned to the watch-house or other place of custody as soon as reasonably practicable after the detention period ends. (4) In the 8 hours mentioned in subsection (2) (the "detention period" );(a) the person may be questioned for not more than 4 hours; and (b) the time out may be more than 4 hours. (c) The detention period starts when the person is;(d) arrested for the indictable offence; or (e) taken into police custody under a removal order; or (f) taken from a watch-house; or (g) otherwise in the company of a police officer at a watch-house, prison, or detention centre, for the purpose of questioning the person. Section 404 - What is a reasonable time to detain a person for questioning or investigation (1) The following must be taken into consideration when deciding what is a reasonable time to detain a person under section 403;(a) whether the person’s detention is necessary for the investigation of an indictable offence; (b) the number of indictable offences under investigation; (c) the seriousness and complexity of an indictable offence under investigation; (d) whether the person has indicated a willingness to make a statement or to answer questions; (e) the person’s age, physical capacity and condition, and mental capacity and condition; (f) for a person arrested—any time spent questioning the person before the arrest; (g) the need to delay or suspend questioning of the person for time out purposes. (2) If the person decides not to answer questions or not to continue answering questions, continuing the detention period may not be reasonable unless;(a) it is necessary to carry out further investigations; or (b) the person consents, or another authority requires the person, to participate in an investigative procedure.
Examples for subsection (2)(b);1 The person consents to taking part in an identification parade. 2 A magistrate orders a medical examination involving the person.
What Is Obscene and Indecent? In another guide (Police Powers and Responsibilities), I provided for the definition of ‘reasonable’ and in this guide, I intend to define ‘obscene’ and ‘indecent’ as it has been decided by our Courts. In R v Close, his Honour Fullagar J unravelled the concept of obscenity; “As soon as one reflects that the word ‘obscene’, as an ordinary English word, has nothing to do with corrupting or depraving susceptible people, and that it is used to describe things which are offensive to current standards of decency and not things which may induce sinful thoughts, it becomes plain, I think, that Cockburn CJ, in the passage quoted from Hicklin, was not propounding a logical definition of the word ‘obscene’, but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel. The tendency to deprave is not the characteristic which makes a publication obscene but is the characteristic which makes an obscene publication criminal.” Obscene Language Swearing has arguably become more acceptable now than ever before, with more and more Australians using foul language, even as terms of endearment however, when swearing in public you could be charged with a criminal offence. In Hortin v Rowbottom, Mulligan J remarked that;‘fuck’ isn’t necessarily obscene, and similarly for the word ‘cunt’.
In Romeyko v Samuels, Bray CJ said; “...in my view, it is equally erroneous to hold that the common four-letter words are necessarily indecent in every context...and hold to that they can never be indecent at all.”
His Honour in Dalton v Bartlett also said; “...I would not regard words like this as even offensive, if, though used in a public place, they are used in the course of a friendly conversation and in conversational tones with someone who takes no offence at them, and that whether they are used as intensives or expletives or in their literal significance.”
In all Australian jurisdictions, criminal laws prohibiting offensive conduct and language are not tied to causing harm to others or to property and can be prosecuted under very broad circumstances. Police will usually exercise their discretion when prosecuting for these offences however, we usually see these offences prosecuted accompanied with other types of offences such as resisting arrest etc. In the Courts, offensiveness is “objectively” determined. This means that the ‘reasonable’ test is often applied.
To warrant criminalisation, offenses usually need to constitute personally abusive insults, be addressed in a face-to-face manner to an individual specifically and the individual must be unable to avoid the insult. Horton v Rowbottom Horton v Rowbottom involved Police attending a property over an alleged domestic dispute where the accused kept repeating the word ‘fuck’. Police asked the accused to calm down and stop using the language and was arrested, charged under the Summary Offences Act and convicted when he refused. The matter was appealed, and the Supreme Court of South Australia held that the Magistrate wrongly concluded the word ‘fuck’ as indecent regardless of context and/or circumstances of use. Mullighan J reviewed the authorities dealing with indecency in other contexts and highlighted the difficulties in determining a; “Community standard of decency”. The cases revealed that any context and the audiences must be considered when determining offensiveness and, in this case, found that the words weren’t used in their primary sense rather, they were used as “intensives” or “expletives” in order to give emphasis to the message he was seeking to convey. Given the accused directed the language to persons well-known to him in the context of a family argument in an emotional state, Mullighan J further held that;‘Although such language was coarse and would be offensive to some sections of the community, such language was now commonly used in ordinary conversation by both men and women in many sections of the community, sometimes in its primary sense but more often in its secondary sense, without offending contemporary standards of decency’. Similarly in Western Australia, the Supreme Court overturned the conviction of Rodney Rude in the case of Keft v Fraser . On this occasion, Rodney Rude was arrested and charged for using the word ‘fuck’ in a public comedy performance. Public Place It is important for Courts to consider the contexts where offensive behaviour and language is used. Conduct and language engaged in at a football match or on a tennis or squash court may be acceptable, or, at least, unremarkable, but offensive if engaged in during a church service or a formal social event. Further, the offensive behaviour and language in private places may be considered less offensive than in public. E (A Child) v The Queen
In the case of E (A Child) v The Queen , a young person was charged with disorderly conduct and obscene language under Section 54 and 59 of the Police Act and initially convicted of the offences before successfully appealing the decision. The youth had been picked up by police for being out on the street late at night without a responsible adult and taken back to the watchhouse where the police planned to have the youth picked up by a responsible adult however, whilst in custody the youth, frustrated and distressed, challenged the authority of the police to hold him. In the course of that conversation with a female officer he said “I’m leaving. You have no right to hold me here. I want to fucking go”. His swearing led to a warning that he would be arrested for obscene language, which prompted the reply “You can get fucked” and “Fuck you”. The original Magistrate found the language to be obscene and he was convicted however, on appeal, White J held that; “The question of whether language is obscene must be determined according to community standards, not the standards of a particular witness”. Adding that; “The question of whether language was obscene must be understood in its context. The use of the word “fuck” as an expletive, where there were no sexual overtones or implications, was not obscene language”. The convictions also failed because the Court did not consider the watchhouse a “public place”. In this case, the accused was an Aboriginal youth who was resisting police authority to impose a curfew and to detain him without any proper legal authority and in the absence of any formal power to hold him, offensive language provided the police with a “holding charge” and a legal basis for exercising authority over the youth. The judgment seems to be a judicial attempt to place limits on the offence and prevent its overuse against young people and minorities.
Attempts by the police to suppress conduct they deem offensive have not always been successful. The courts have imposed some limits on the scope of offensiveness in cases where the conduct is obviously “political”. Ball v McIntyre Ball v McIntyre considers offensiveness in a political context. In this case, the police attempted to prevent an anti-Vietnam protest outside Parliament House in Canberra. Desmond Ball avoided arrest for some time through legal debate. Whilst he was negotiating with Police, he had the advantage of knowing what his legal rights were, now a Professor at the Australian National University he had climbed up a statue of George V and hung a placard that read “I will not fight in Vietnam”. The accused refused to remove the placard or climb down when requested by the police. When he eventually came down, he was arrested and prosecuted for behaving in an offensive manner in a public place under s 17(d) of the Police Offences Ordinance. (now see s 546A of the Crimes Act 1900 (ACT) . At the trial the police emphasised that neither the political nature of the demonstration nor the student’s refusal to obey their instructions had caused them offense. Rather the police testified that it was the accused’s act of climbing on a public monument and placing the sign that had caused the offense. This is another example where it seems only the police officers had been offended as there was no evidence that the act had caused any members of the public any offense or interfered with their enjoyment of this public place or statue.
Kerr J (later to become the Governor-General who sacked Prime Minister Gough Whitlam) held that to be offensive, the behaviour must be; “Calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”. By applying an objective test, the political context of the accused’s behaviour could be introduced as a relevant factor. As Kerr J acknowledged;
“The average man [or woman], the reasonable man [or woman], being present on such an occasion, would readily see that the defendant was engaged in a political demonstration. He [or she] would doubtless think that climbing on the pedestal and placing the placard on the statue was rather foolish and a misguided method of political protest, that it offended against the canons of good taste, that it was in that sense improper conduct, but I do not believe that the reasonable man [or woman] seeing such conduct to be truly political conduct, would have his [or her] feelings wounded or anger, resentment, disgust or outrage roused.”
And Further;
“I recognize that different minds may well come to different conclusions as to the reaction of the reasonable man [or woman] in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so-called reasonable man [or woman] is reasonably tolerant and understanding, and reasonably contemporary in his [or her] reactions.”
“An objective standard of “offensive conduct” which explicitly provides room for dissent appears to be more protective of political protest. It avoids the problems associated with breach of the peace, where the right to engage in peaceful and otherwise lawful conduct is held hostage to the subjective responses (however unreasonable) of a hostile audience. Under Kerr J’s definition, the political motives behind the accused’s words and conduct are relevant to determining offensiveness. In this sense, it may be viewed as an exception to the general rule that motive is irrelevant to the criminal law…” Most individuals whose conduct is questioned by Police are not in a position to argue whether or not their conduct constitutes an offence although from personal experience, the Police can become even more determined to place an individual under arrest when they become argumentative or assertive regarding their rights with Police. Any “knowledge of rights” can also be regarded by Police as evidence of previous contact with police . In many respects Ball v McIntyre is an exceptional case. It stands in stark contrast to the approach taken by the English courts where the question of offense is regarded exclusively as a matter of fact for the tribunal. Brutus v Cozens In Brutus v Cozens, the accused attended a tennis match at Wimbledon, disrupting the match by throwing anti-apartheid leaflets around the court (one of the players was South African). The incident lasted two to three minutes before he left the court voluntarily. He was later charged with using “threatening, abusive or insulting” words or behaviour likely to cause a breach of the peace under s 5 of the Public Order Act . The magistrate dismissed the charge on the ground that the accused’s conduct was not “insulting”. The prosecution appealed to the Divisional Court, which held that it could be insulting and sent the matter back to the magistrate however, the accused then appealed to the House of Lords.
This case allowed the Lords an opportunity to consider the meaning of the phrase “insulting words or conduct”. The court held unanimously that the determination of whether words or conduct was “insulting” is a question of fact for the tribunal. Lord Reid pointed out; “In every case, the proper construction of a statute is a question of law for the courts. For this offence, Parliament intended that the words used should be given their ordinary meaning "It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of English language cover or apply to the facts which have been proved". Lord Reid established a new definition or test, not dissimilar to the definition of offensive conduct offered by Kerr J in Ball v McIntyre . Lord Reid pointed out that the qualifying adjectives; “threatening, abusive or insulting” Had been employed by Parliament to define the limits of free speech. Conduct would not be caught by the section, provided that a person’s words or behaviour did not transgress these limits, even though it posed some threat of disorder. In rejecting the definition proposed by the Divisional Court, Lord Reid stated;“There can be no definition. But an ordinary sensible man knows an insult when he [or she] sees or hears it”. He later stated;“Insulting means insulting and nothing else”. The Over-Representation of Indigenous Persons
There has been increasing awareness that the use of minor public order offences, such as offensive conduct and language, significantly contribute to the high rates of arrest and prosecution of Indigenous persons. Although the arrest rate for offensive conduct and language has been declining overall, an empirical study in New South Wales has established that minor public order offences continue to have a disproportionate impact on individuals from Indigenous backgrounds: R Jochelson, “Aborigines and Public Order Legislation in New South Wales” (1997) Crime and Justice Bulletin No 34 . The study revealed that Aboriginal persons continue to be grossly over-represented among arrests for offensive language and conduct offences, and that there was a positive and statistically significant correlation between areas with higher proportions of Aboriginal residents and areas with higher court appearance rates for offensive conduct and language. I covered the over-representation of indigenous Australians further in my submission to the Queensland Government Community Support and Services Committee: Inquiry into the decriminalisation of Certain Public Offences recently and was asked to speak directly to the Committee at a public hearing held in Cairns. Resist Arrest and Obstruct Police are commonly paired with offences relating to failure to move-along and public nuisance offences.
The importance of context was again emphasised in Saunders v Herold where the accused, an Aboriginal man, and his friends were asked to leave the Canberra Workers Club, which they did. Outside, the accused was approached by police, and was alleged to have said “Why don’t you cunts just fuck off and leave us alone?” His conviction for offensive conduct was quashed by Higgins J. Burns v Seagrave & Anor
In Burns v Seagrave & Anor, the accused individual presented to the Kings Cross police station to complain about drug dealing in the area. He was very upset with the response of Police and challenged the Police refusal to take any action, also refusing to give his name when asked and told the sergeant; “I don’t have to give you anything, you fat spiv. You’re nothing but a useless fat spiv. I don’t have to talk you, you giraffe.” In another exchange, the accused said to the sergeant; “I’m not speaking to you, you’re not my type.” He was charged with using offensive language and the evidence put forward made claims that the sergeant was extremely offended by the homosexual connotations however the magistrate dismissed the charge. The DPP lodged an appeal against this decision and the dismissal of the charge, with the Supreme Court of New South Wales supporting the right to appeal providing that there was sufficient evidence to allow the case to proceed.
The legal concepts of offensiveness and indecency lie at the heart of many public order offences. Decisions such as Ball v McIntyre and Saunders v Herold are important particularly as guides to magistrates charged with the duty of determining whether particular conduct is offensive. The conceptions of good order and decency created and applied by both police officers and magistrates have the potential to operate unfairly against minorities who are perceived to be a threat to social order and/or police authority. For a review of the wide range of conduct that has been caught by these laws, see D Brown, D Farrier and D Weisbrot, Criminal Laws (2nd ed, Sydney: Federation Press, 1996), pp 957-959. Resist Arrest / Resist, Hinder Police Offences In New South Wales, an individual can be charged under two sections of the Crimes Act 1900 (NSW) . If charged and convicted under Section 58 , an individual can receive a Maximum penalty of (5) years imprisonment and if charged and convicted under Section 546C , the Penalty is only 12 months’ imprisonment or a $1,100 fine. In Queensland, resisting arrest can be charged under either the Police Powers and Responsibilities Act or the Criminal Code . Section 790 - Offence to assault or obstruct police officer (1) A person must not—(a) assault a police officer in the performance of the officer’s duties; or (b) obstruct a police officer in the performance of the officer’s duties. Penalty— Maximum penalty— (a) if the assault or obstruction happens within licensed premises, or in the vicinity of licensed premises—60 penalty units or 12 months’ imprisonment; or (b) otherwise—40 penalty units or 6 months imprisonment. (2) For subsection (1), a person who obstructs a police dog or police horse under the control of a police officer in the performance of the police officer’s duties is taken to obstruct the police officer. (2A) The Penalties and Sentences Act 1992 , section 108B also states a circumstance of aggravation for an offence against this section. (3) In this section— "assault" has the meaning given by the Criminal Code, section 245. "obstruct" includes hinder, resist and attempt to obstruct. Section 340 - Serious assaults(1) Any person who— (a) assaults another with intent to commit a crime, or with intent to resist or prevent the lawful arrest or detention of himself or herself or of any other person; or (b) assaults, resists, or wilfully obstructs, a police officer while acting in the execution of the officer’s duty, or any person acting in aid of a police officer while so acting; or (c) unlawfully assaults any person while the person is performing a duty imposed on the person by law; or (d) assaults any person because the person has performed a duty imposed on the person by law; or (e) assaults any person in pursuance of any unlawful conspiracy respecting any manufacture, trade, business, or occupation, or respecting any person or persons concerned or employed in any manufacture, trade, business, or occupation, or the wages of any such person or persons; or (f) unlawfully assaults any person who is 60 years or more; or (g) unlawfully assaults any person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device; is guilty of a crime. Penalty— Maximum penalty— (a) for subsection (1) (b) , if the offender assaults a police officer in any of the following circumstances—(h) the offender bites or spits on the police officer or throws at, or in any way applies to, the police officer a bodily fluid or faeces; (ii) the offender causes bodily harm to the police officer; (iii) the offender is, or pretends to be, armed with a dangerous or offensive weapon or instrument—14 years imprisonment; or (b) otherwise—7 years imprisonment. Example— walking frame, caliper, walking stick and artificial limb
(1C) The Penalties and Sentences Act 1992 , sections 108B and 161Q also state a circumstance of aggravation for an offence against subsection (1) (b) . (1D) An indictment charging an offence against subsection (1) (b) with the circumstance of aggravation stated in the Penalties and Sentences Act 1992 , section 161Q may not be presented without the consent of a Crown Law Officer. (2) A prisoner who unlawfully assaults a working corrective services officer commits a crime. Penalty— Maximum penalty— (a) if the prisoner assaults a working corrective services officer in any of the following circumstances— (i) the prisoner bites or spits on the corrective services officer or throws at, or in any way applies to, the corrective services officer a bodily fluid or faeces; (ii) the prisoner causes bodily harm to the corrective services officer; (iii) the prisoner is, or pretends to be, armed with a dangerous or offensive weapon or instrument—14 years imprisonment; or (b) otherwise—7 years imprisonment. (2AA) A person who— (a) unlawfully assaults, or resists or wilfully obstructs, a public officer while the officer is performing a function of the officer’s office; or Example— A person unlawfully assaults an authorised officer under the Child Protection Act 1999 while the officer is investigating an allegation of harm to a child under that Act. (b) assaults a public officer because the officer has performed a function of the officer’s office; commits a crime. Penalty— Maximum penalty— (a) if the offender assaults a public officer in any of the following circumstances— (j) the offender bites or spits on the public officer or throws at, or in any way applies to, the public officer a bodily fluid or faeces; (ii) the offender causes bodily harm to the public officer; (iii) the offender is, or pretends to be, armed with a dangerous or offensive weapon or instrument—14 years imprisonment; or (b) otherwise—7 years imprisonment.
(2B) The Penalties and Sentences Act 1992 , section 108B also states a circumstance of aggravation for an offence against subsection (2AA).(3) In this section— "corrective services facility" see the Corrective Services Act 2006 , schedule 4 . "Corrective services officer" see the Corrective Services Act 2006 , schedule 4 . "office" includes appointment and employment. "prisoner" see the Corrective Services Act 2006 , schedule 4 . "public officer" includes— (a) a member, officer or employee of a service established for a public purpose under an Act; and Example— Queensland Ambulance Service established under the Ambulance Service Act 1991(c) a health service employee under the Hospital and Health Boards Act 2011 ; and (d) an authorised officer under the Child Protection Act 1999 ; and (d) a transit officer under the Transport Operations (Passenger Transport) Act 1994 . "working corrective services officer" means a corrective services officer present at a corrective services facility in his or her capacity as a corrective services officer. In New South Wales, resisting arrest is one of the most common offences seen by the Aboriginal Legal Service. There is no difference in the elements of the offences under either section however, Section 58 provides that the ‘victim’ must be a constable, other peace officer, customs house officer, sheriff’s officer, prison officer or bailiff and in contrast, Section 546C only extends to a ‘police officer.’ 546C - Resisting etc police Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both. Section 58 - Assault with intent to commit a serious indictable offence on certain officersWhosoever-- assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff's officer, or bailiff, or any person acting in aid of such officer, orassaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. Elements of the Offence The prosecution must prove two elements of these offences beyond a reasonable doubt, the element of ‘Mens Rea’ and ‘Actus Rea’. In a nutshell, ‘Mens Rea’ refers to the intent and whether or not the individual charged with this offence had the intent necessary to be found guilty of the offence whilst ‘Actus Rea’, refers to whether the individual actually acted in a way alleged. Did their behaviour actually have the effect of resisting or obstructing etc. Mens Rea To be guilty of resisting arrest, the person resisting must actually intend to oppose or restrain a police officer. Therefore, ‘specific intent’ to oppose a police officer must exist. In R v Galvin (No.2) , O’Bryan, Dean and Hudson JJ held that; ‘The word “resist carries with it the idea of opposing by force some course of action which the person resisted is attempting to pursue. To “resist” such a course of action, the person said to resist must know what that attempted course of action is. This requires the existence of a specific intent on the part of the alleged resistor. The composite expression “resist a member of the police force in the execution of their duty” connotes an intention to oppose or restrain a member of a particular class in the community and while that member is acting in a particular way... So also, with the third of these three offences – ‘obstructing’. There the Legislature has introduced the word ‘wilfully.’ It was probably thought unnecessary to introduce any word before ‘assaults’ or ‘resists’ because the crimes of assault and the very word ‘resists’ already imports the notion of intention ’. In his separate concurring judgement, Barry J held that;‘Resistance to another person’s action may be active or passive, but it necessarily involves an intention to oppose that other persons will ’ and;‘In my view, it will often be clearly evident as to the intention of the accused. However, it is important to bear in mind that the onus rests upon the crown to prove that the accused specifically intends to resist the police ’. The Court in R v Appleby concluded that passive action constituted resistance .In R v Galvin (No.2) O’Bryan, Dean and Hudson JJ held;‘...the onus is on the Crown from first to last to prove that the intention of the accused was in the one case to assault a policeman who was acting in the due execution of their duty, in the second case to resist a police officer so acting... ’ Historically, the courts have not required proof of fault, for minor public order crimes such as offensive conduct. Although the commitment to subjectivism remains weak for most public offences, some courts have emphasised the importance of intention in cases where the crime carries a penalty of imprisonment. Jeffs v Graham Jeffs v Graham provided, that the requirement that the prosecution must prove that offensive behaviour was “intended” was affirmed in Daire v Stone. In this case, the accused was charged with behaving in a “disorderly manner” in a public place contrary to s 7 of the Summary Offences Act which expressly included, behaving in an “offensive manner”. The allegation was that the accused had “eyed off” females in a store, the charge was initially dismissed, and the prosecution appealed. The Supreme Court of South Australia dismissed the appeal by the prosecution on the ground that the offence of disorderly behaviour requires proof beyond reasonable doubt that;“There is a conscious and deliberate course of conduct by the accused person which constitutes this interference with the comfort of other people such as to leave the tribunal of fact with no reasonable doubt that the conduct of the accused person was intentionally done to bring about such interference”.
And;“On these facts, there was no evidence of the purpose or intention of the accused so to establish that the conduct was directed at the victims. Since obscene language is often used unconsciously as a means of linguistic emphasis or general expletives, requiring a proof of subjective fault is an important limitation on the scope of this offence”. Consider also however, the case of Police v Pfeifer where the accused wore a t-shirt in public emblazoned with the words “Too Drunk to Fuck”. He was convicted of behaving in an offensive manner the same section of the Summary Offences Act and the Supreme Court of South Australia, in dismissing the appeal, held that s 7 did not require the prosecution to prove an intention or knowledge. The Court reviewed more recent authorities favouring subjective fault for offensive conduct crimes. In Applying the principles laid down by the High Court in He Kaw Teh v The Queen, the Supreme Court held that the presumption that intent or knowledge is an essential element of s 7 had been rebutted. Doyle CJ, with whom Debelle and Lander JJ agreed, attached particular relevance was the language of the section noting that; “Other crimes of offensive-ness in the Act expressly required intention and the subject matter of the provision”. Actus Reus Resistance is defined as opposing by force, some course of action by the Courts such as an element of ‘violence’ or some positive action to prove a ‘resist offence’. The Courts though provide that in terms of an ‘obstruct offence’, there need only be a passive action. In R v Galvin (No.2) , O’Bryan, Dean and Hudson JJ held;‘The word ‘resist’ carries with it the idea of opposing by force some course of action which the person resisted is attempting to pursue ’. In R v Appleby Humphreys, Atkinson and Tucker JJ held; ‘This court entertains no doubt that “Violence” used in this connection means real violence, that is to say something more than a mere refusal to submit to arrest. It probably means something more than would be sufficient to justify a conviction of obstructing the police officer in the execution of his duty; violence means violence ’. Wilful Obstruction / Obstruct Police Offences In New South Wales, the Crimes Act 1900 (NSW) provides the offence of ‘wilful obstruction’ with a Maximum penalty of (2) years imprisonment and in Queensland, the obstruction of a Police Officer is an offence under the Criminal Code providing a maximum of seven years imprisonment and the Police Powers and Responsibilities Act provides for a maximum penalty of 40 penalty units or six months imprisonment in Queensland. The elements of ‘Mens rea’ (intent) and ‘Actus Rea’ (action), must again be proven beyond a reasonable doubt in order for an individual to be found guilty of this offence. The offences of resisting and obstructing Police are often interchangeable and the key difference between them, at least when it comes to assigning or proving guilt is that in the circumstances of ‘resist’, the Courts provide that there needs to be some ‘violence’ and/or positive action whereas, where the Courts are considering a matter of ‘obstruct’, the action can be passive. Nevertheless, in each circumstance the ‘Mens Rea’ (intent) and ‘Actus Rea’ (action) must be proved. In Lewis v Cox , the Court held that;The simple facts which the court has to find are whether the defendant’s conduct in fact prevented the police from carrying out their duty, or made it more difficult to do so, and whether the defendant intended that conduct to prevent police from carrying out their duty or to make it more difficult to do so . Section 790(1) may be contrasted with s 340(1)(b) of the Code , which provides that “any person who wilfully obstructs a police officer while acting in the execution of the officer’s duty is guilty of a crime and is liable to imprisonment for seven years.” The presence of the term “wilfully” in that section makes it similar to English statutory provisions in respect of which it has been held that the offence is committed only if it is shown that the defendant did the act with the intention of obstructing the police officer. In Willmott v Atack Croom-Johnson LJ, with whom the other members of the Court of Appeal agreed, adopted the definition of “obstruct” given by Lord Parker CJ in Rice v Connolly and concluded that it was not sufficient for the prosecution to show that the particular act which amounted to an obstruction was done deliberately, but; “there must be something in the nature of a criminal intent of the kind which means that it is done with the idea of some form of hostility to the police with the intention of seeing that what is done is to obstruct, and that it is not enough merely to show that he intended to do what he did and that it did in fact have the result of the police being obstructed.” In Lewis v Ogden the High Court at p 688 said that “wilfully” meant intentionally or deliberately, importing a notion of purpose and doing more than negativing the notion of inadvertently or unconsciously. In R v Lockwood , it was held that the word “wilfully” in Chapter 46 of the Criminal Code was also satisfied by proving that the defendant deliberately did an act and at the time that he did it, the result charged in the indictment was a likely consequence of his act and he recklessly did the act regardless of the risk, though it was sufficient to prove the existence of an actual intent. In terms the decision was confined to Chapter 46 , which does not include s 340 . In arriving at this conclusion, the court was influenced by the decision of the High Court in Vallance v R where the Court made a decision as to the meaning of the word “intentional” where it appeared in s 13(1) of the Criminal Code of Tasmania. Although Tasmania is a Code state, s 13 is to the opposite effect of s 23(2) , in that prima facie it requires intention for criminal responsibility. As a result, the Tasmanian Code is significantly different from the Queensland Code. In Dibble v Ingleton the Court of Appeal held that the approach in Rice v Connolly applied only in circumstances where the obstruction consisted of a refusal to do something which the person was under no legal obligation to do. Bridge J with whom the other members of the court agreed; “On the other hand, I can see no basis in principle or in any authority which has been cited for saying that where the obstruction consists of a positive act, it must be unlawful independently of its operation as an obstruction of a police constable under s 51. If the act relied upon as an obstruction had to be shown to be an offence independently of its effect as an obstruction, it is difficult to see what use there would be in the provisions of s 51 of the Police Act 1964 .” The terms of s 51 can be conveniently passed over, but one may note that s 340 , which makes the wilful obstruction of a police officer an offence, also covers a large number of other matters under the general heading “serious assaults”. In some cases, the specific paragraph of subsection (1) includes the word “unlawfully” and in some cases it does not. The obvious inference is that the legislative intention was that in some cases it is necessary to show that what was done was done unlawfully, that is to say without authorisation, justification or excuse, and in some cases, it is not necessary to show this, and it is sufficient to prove the specific elements identified in the paragraph. In those circumstances s 340(1) in itself makes the behaviour (with or without any intention) a crime, and hence unlawful. Indeed, the terms of s 790(1) not only provide a penalty for obstructing police but prohibit the obstruction of police. It is therefore made unlawful in the absence of some defence. In Couchy v Birchley his Honour Judge McGill, considered an offence of obstruct police and the necessity of the person to have been lawfully arrested. His Honour was also considering an offence of public nuisance pursuant to section 7AA of the Vagrants, Gaming and Other Offences Act and Section 198 of the Police Powers and Responsibilities Act , McGill DCJ said: "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 concerned and the Magistrate." And further, his Honour said:"It is however, unnecessary for me to consider the matter further. If what was 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 at the time in fact reasonably necessary for the arrest to be affected for one or more of the reasons, there was simply no evidence from any source of that." In Coleman v Power McHugh J said;"Each of the sub-sections under which the appellant was charged is predicated on the lawfulness of the action being resisted or obstructed. It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing. In Re K, after reviewing the authorities on the scope of an officer's duty, the full court of the Federal court said: "The effect of all of those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein, An officer who unlawfully arrests a person is not acting in the execution of his or her duty ....... " McHugh J continued:45 "These authorities show that once the conduct of an officer is unlawful, the level of physical response offered by an accused is irrelevant to a charge involving the "execution of duty" or "performance of duty". Coleman v Power In the case of Coleman v Power , the High Court was asked to consider whether flyers using ‘insulting words’, alleging police corruption in the Queensland Police Force constituted a criminal offence or whether they were protected under the implied freedom of political communication. Coleman was a student of law and politics in Townsville and was arrested by Power, (a police officer) when he was asked to stop handing out the flyers and refused. Power arrested Coleman for using ‘insulting words’ under the Vagrancy Act as well as assaulting and obstructing a police officer. Ultimately, Coleman was found not guilty of an offence against s7(1)(d) of the Vagrancy Act , With Gummow, Hayne JJ and Kirby J holding that this particular section of the Act infringed upon the rule and test established in Lange v Australian Broadcasting Corporation . They reasoned that, what Coleman said was not insulting as intended by the Act and agreed with Coleman that communications alleging corruption of police were protected by the implied right to political communication with Kirby J stating;“Insulting words were a well-known tradition in Australian politics from its earliest history” Although the Court held that the arrest was considered lawful, at least in relation to the assault/obstruct offence, other cases have held that an arrest is unlawful if a person is not told of the reason for the arrest, in circumstances where the accused would not have known the reason for the arrest, and it was not practicably impossible to have informed him. Horton v Rowbottom I mentioned this case previously as it provided an authority regarding what is obscene and offensive language however, the case also considered whether or not the defendant could be lawfully arrested in the absence of being told the reason for the arrest. As previously mentioned, the Police attended the property over an alleged domestic dispute, where the accused kept repeating the word ‘fuck’. Police asked the accused to calm down and stop using the language and was arrested. In this case, the Police had not warned the defendant that the use of the word could or would result in a criminal offence and although it was argued the defendant should have known, for what reason he was under arrest given the officers had asked him to stop using the word repeatedly, The Supreme Court of South Australia eventually held that the arrest was unlawful, that the defendant did not know why he was under arrest and that it was not impracticable for the Police to explain to the defendant why he was under arrest. In Hortin v Rowbottom , Mulligan J stated;"Of course, it is well recognised that the failure to inform a person of the reason for the arrest does not render it unlawful if the circumstances are such that he must know the general nature of the alleged offence for which he is detained and he produces the situation which makes it practically impossible to inform him of the reason for the arrest ; Whilst the incident involving Constable Muir and the appellant was only a brief period of time, there was sufficient time for the appellant to ask why he was being arrested and for that information to be given to him, I do not think the appellant would have known the reason for his arrest and it was not practicably impossible to inform him of the reason for his arrest. Consequently, it was not established that is arrest was lawful, it is not the resistance of a police officer which constitutes the offence, but "what the police officer is doing or attempting to do, namely the execution his duty ". As the arrest was not proved lawful, the appellant did not resist Constable Muir in the execution of any relevant duty and this charge was not proved beyond reasonable doubt. " There has been a number of cases where an obstruct charge has been dismissed by the Courts because the arrest has been found unlawful. Let’s firstly look at the relevant legislation in Queensland. Section 365 - Arrest without warrant (1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects have committed or is committing an offence if it is reasonably necessary for 1 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; (b) to ensure the person’s appearance before a court; (c) to obtain or preserve evidence relating to the offence; (d) to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence; (e) to prevent the fabrication of evidence; (f) to preserve the safety or welfare of any person, including the person arrested; (g) to prevent a person fleeing from a police officer or the location of an offence; (h) because the offence is an offence against section 790 or 791 ; (i) because the offence is an offence against the Domestic and Family Violence Protection Act 2012 , section 177 , 178 or 179 ; (j) because of the nature and seriousness of the offence; (k) because the offence is— (i) an offence against the Corrective Services Act 2006, section 135 (4) ; or (ii) an offence to which the Corrective Services Act 2006, section 136 applies. (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 15. (3) Subject to the Youth Justice Act 1992 , section 13, it is lawful for a police officer to arrest a child without warrant if the police officer reasonably suspects the child is committing or has committed an offence.
Police v Bubbles In the case of Police v Bubbles , the defendant Milo Bubbles was charged with the offences of public nuisance and obstruct police. The facts of the case provide that Mr Bubbles was walking through the Brunswick Street Mall, Fortitude Valley with his partner nearby the Brunswick Street Mall Police Beat where five police officers; Constables Dods, Hackett and Purcell, Senior Constable Cox and Sergeant Whitehouse were chatting outside between themselves. As Mr Bubbles and his wife walked through the group of police officers, he said the words to the effect of "fucking wankers". Constable Dods called out to Mr Bubbles requesting that he stop before following and taking Mr Bubbles by the arm saying, ‘What did you say?”, Mr Bubbles replied "Nothing”, and Constable Dods said "You're under arrest" Constable Dods took Mr Bubbles toward the Police Beat and through the main door. Mr Bubbles then started to pull his arm away from the Constable Dods, who then attempted to restrain Mr Bubbles and move him toward the rear of the Police Beat. The case of `obstruct police' against Mr Bubbles was not particularised however, the Court considered whether his behaviour amounted to an obstruction and/or public nuisance and in considering this, the Court considered in particular, section 444 of the Police Powers and Responsibilities Act which provides that to constitute an obstruct offence, the police officer must be acting "in the performance of the officer’s duties" concluding on this occasion that the officer was not acting in the performance of their duties. The Court determined that the officer could not rely on section 198(2) to arrest Mr Bubbles without a warrant to question or investigate an offence as that provision is only for the commission or suspected commission of an indictable offence and the offence of public nuisance is not indictable. The only sub-sections which could have been considered in this case are section 198(1)(a), (b), (c) and (i). Sub-sections (d), (f) and (j) - (1) could not apply in the circumstances of this case. Sub-Section (1)(a) says a person can be arrested without a warrant if it is reasonably necessary to prevent the continuation of an offence or repetition of an offence or the commission of another offence. The Court determining this was not the case as when Mr Bubbles was invited to repeat the words again at the invitation of Constable Dods, that is, as far as Constable Dods was concerned, to commit the offence again, Mr Bubbles refused. It could not be said he was continuing the offence nor intended to commit another offence. All he did was say `nothing' and he was immediately arrested. Further, he stopped when Constable Dods put his hand on his arm and answered Constable Dods when Constable Dods spoke to him. Mr Bubbles had walked about 5 paces after saying the words when Constable Dods put his hand on his arm. He stopped and spoke. He was then immediately arrested. There is no evidence he was about to commit another offence. Further, subsection (1)(b) provides for arrest to establish a person's identity and there was no evidence of this before his arrest and it was said that at the police beat, he was `happy' to show the police officer his ID. Subsection (1)(c) provides for arrest to ensure a person’s attendance before the court but there is no evidence this was the reason for the arrest of Mr Bubbles in the Brunswick Street Mall. Subsection (1)(g) provides for arrest if it is reasonably necessary to preserve the safety or welfare of any person including the arrested person. Any concern for Mr Bubbles' welfare was after he was arrested inside the Police Beat and cannot be relied upon as to why he was arrested in the street. Subsection (1)(h) could not be relied upon as Mr Bubbles was not fleeing Constable Dods. Constable Dods said stop twice,51 put his hand on Mr Bubbles, spoke to Mr Bubbles who answered him, and he was immediately arrested. There is no suggestion whatsoever he was fleeing Constable Dods or the scene. Subsection (1)(i) allows for arrest for an offence against section 444. This is clearly not why he was arrested. Mr Bubbles is said to have obstructed the police officer after he was arrested and when he was inside the Police Beat. Accordingly, the legislative provision to arrest Mr Bubbles is section 198 of the PPRA. None of the reasons provided in that section which allow for arrest without a warrant have been met. Constable Dods had no power to arrest Mr Bubbles for the simple offence of public nuisance and the arrest was considered unlawful by the Court. Further, there is no evidence that Constable Dods told Mr Bubbles why he was arrested and there was ample opportunity for Constable Dods to tell him why. This was not a case where Mr Bubbles knew what he did was wrong. To the contrary, he, did not think he had done anything wrong . The failure by Constable Dods to tell him why he was arrested means also that the arrest was not lawful . For the sake of completeness, the Court considered whether the behaviour of Mr Bubbles amounted to an offence of obstruct police if the arrest by Constable Dods was lawful. Mr Bubbles was not told why he was arrested and did not think he had done anything wrong and was now being deprived of his liberty. His behaviour afterwards and inside the Police Beat must be seen in that context. Surely, he must be able to challenge the police officers conduct towards him in those circumstances. It would be natural to do so. There is no evidence to suggest that was any more than a short moment in time. The pulling away of his arm and the holding of a door jamb must be within the bounds of acceptable or foreseeable human behaviour in such a circumstance. Booy v Police In the case of Booy v Police , it was alleged that Mr Booy, being loud and using an aggressive tone, calling Sergeant Atkinson a ‘fucking liar’ whilst leaning slightly forward and taking a step towards the officer at a Mt Garnett rodeo, behaved in an offensive/threatening way and that constituted a public nuisance offence. Mr Booy was also charged with an obstruct police charge.
The evidence supported a finding that there was no attempt to strike Sergeant Atkinson and Senior Constable Kendjelic said that Mr Booy had been standing with his hands in front of him in a non-aggressive way. The Court considered the the following judgements relating to offensiveness and whether, when aimed at police officers, whether the words ‘fucking liar’ could amount to offensive and/or threatening, thereby proving the public nuisance offence. In Coleman v Power , Gummow, Hayne and Kirby JJ stated that;“Where offensive conduct is directed at a police officer, there is much less of a chance that the conduct in question will be considered an offence. This is because a police officer, by virtue of his/her training and temperament would not be provoked to such unlawful retaliation.” As Kirby J says; “The law would not impute that possibility to police officers who, like other public officials, are expected to be thick-skinned and broad- shouldered in the performance of their duties.”Similarly, in their joint judgement, Gummow and Hayne JJ state that; “The bare use of the words to a police officer which the user intends should hurt that police officer will not constitute an offence because police officers must be expected to resist the sting of insults directed to them.” Thus, three members of the High Court clearly state that insulting language directed at a police officer will not, in the absence of highly exceptional circumstances, constitute offensive language within the meaning of the section . In Butterworth v Geddes , Forde DCJ refers to Coleman v Power in particular, Gleeson CJ where he said; ‘Concepts of what is disorderly, or indecent, or offensive vary with time and place, and may be affected by the circumstance in which the relevant conduct occurs. The same is true of insulting behaviour and speech.” In Ashton v Green , Bundaberg Judge Skoien said; “Under section 7AA (now Section 6) the question of whether a person behaves in an offensive way by the use of offensive language must no doubt be judged objectively. Otherwise, an offence could be committed by saying, to a person of extremely delicate sensibilities, something which that person found offensive but which most people would regard as quite acceptable. But in making an objective judgement the surrounding circumstances are surely relevant; such things as the time and place, the vehemence of the utterance and, relevantly, whether the utterance has, would be known to the speaker to have, and is intended by the speaker to have, special relevance to the recipient. In my opinion this utterance was vehement; the appellant must have known it to carry an extra sting when directed at police; he must have intended to inflict that extra sting.” And at paragraph 23 referring to Coleman v Power , “Those passages support my opinion that subjective matters can be considered when deciding whether a statement is offensive to a particular person, but I do not take their Honours to be laying down a general rule that police officers cannot be offended by publicly expressed insult or abuse. The thrust of their comments was to the effect that the likelihood of a breach of the peace occurring as a result of the insult or abuse was an essential element of the offence under section 7(i)(d) of the Vagrants Act, the provision then being considered.” The Court agreed with the prosecution that Mr Booy’s behaviour was offensive and occurred in a public place however, ultimately decided that there was no evidence that the offensive behaviour interfered with the enjoyment of the rodeo, with neither the police nor other witnesses in the group providing any evidence that their peaceful enjoyment was interfered with and as a result, held that the prosecution failed to prove the public nuisance offence, according to the relevant standard. Likewise, My Booy was found not guilty of the obstruct offence. The Court considered the decisions of the Queensland Court of Appeal in Rowe v Kemper, and the South Australian Supreme Court in Gaskin v Police concluding that, It would have been lawful for Sergeant Atkinson to arrest Mr Booy, if he reasonably suspected Mr Booy had committed or was committing an offence, IF, it was reasonably necessary for one of the reasons listed in Section 365 Similarly, as in the case of Police v Bubbles. Public Nuisance is not an indictable offence, nor an offence against Sections 790, or 791 of the Police Powers and Responsibilities Act . It is not an offence against the Domestic and Family Violence Protection Act , or the Corrective Services Act . The Juvenile Justices Act does not apply, as Mr Booy is an adult. The Court held that an act of public nuisance may be of such a nature and of such seriousness to warrant an arrest without a warrant, as in the case of a person abusing staff at a hospital however, the facts of this case are not such as to justify an arrest under Section 365(1)(k) . Sergeant Atkinson gave no evidence at all to justify the arrest. There is no evidence that the arrest was necessary to satisfy any of the requirements of Section 365(1)(a) to (h) . The only evidence that went anywhere near addressing the requirements of Section 365 was that Mr Magoffin asked Sgt Atkinson why it was necessary to arrest Mr Booy, to which Sergeant Atkinson replied, “it was necessary because of his behaviour and his aggressive step towards me”. For the above reasons, the arrest was considered unlawful and both charges against Mr Booy were dismissed. Public Nuisance Offences Summary Offences Act Section 6 – Public Nuisance(1) A person must not commit a public nuisance offence. Penalty— Maximum penalty— (a) if the person commits a public nuisance offence within licensed premises, or in the vicinity of licensed premises—25 penalty units or 6 months imprisonment; or (b) otherwise—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. (4) 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.(5) 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. (6) Also, in a proceeding for a public nuisance offence, more than 1 matter mentioned in subsection (2) (a) may be relied on to prove a single public nuisance offence.
The cases of Bubbles , Booy , Horton and Rowe mentioned above, all relate to circumstances of ‘public nuisance’. These cases provide authorities for the interpretation of matters, what is offensive and also provide in some instances, defences to the offence. In all but the case of Rowe , the offence was dismissed however, Rowe successfully brought a civil action against police.
The Bubbles case was dismissed because the Court held that the arrest was unlawful even though the Court agreed with the prosecution that the language was offensive and occurred in a public place. Similarly, the Booy case was dismissed because the arrest was considered unlawful also however, the difference between these cases is that the Court held in Booy v Police that there was insufficient evidence to prove the public nuisance offence beyond a reasonable doubt because even though there were witnesses and the police provided evidence at trial, there was no evidence that Mr Booy’s language interfered with the enjoyment of anyone. In Bubbles v Police , one element of the offence easily dealt with by the Court was that the place where the words were said, the Brunswick Street Mall, considered a `public place' for the Purposes of the Vagrants Gaming and Other Offences Act. The Court was also satisfied that police officers are members of the public and capable of being offended by the behaviour of others however, it is relevant that the only person who heard the words were police officers. In DPP v Orum the English Divisional court noted;"Words and behaviour [of this kind] would be wearily familiar to police and have little emotional impact save that of boredom." In Coleman v Power , although considering the now repealed section 7(i)(d) of the Vagrants Gaming and Other Offences Act , Gummow and Mayne JJ said;“The bare use of words to a police officer which the user intends should hurt that officer will not constitute an offence. By their training and temperament, police officers must be expected to resist that sting of insults directed to them." And Kirby J said at paragraph 258: "at least the law would not impute that possibility to police officers who, like other public officials are expected to be thick skinned and broad shouldered in the performance of their duties. " The question for the Court in this case was really whether the words, "fucking wankers", was an offence under section 7AA of the Vagrants Gaming and Other Offences Act . A question with two limbs, were the words offensive, obscene, indecent or abusive? And did the defendants use of the words interfere with or were they likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public? Offensiveness It was not argued that the words were obscene, indecent or abusive but that they were offensive. The test for whether the words were offensive is an objective test to be applied in accordance with contemporary community expectations .The court's finding merely "represents an expression of contemporary community standards accepted by ordinary decent minded citizens." Whether the conduct offends community standards is to be assessed in light of the Court's view of community standards, not the view of a particular witness . In Regina v Suckling, the Court considered the application of R v Swaffield and Pavic where the High Court of Australia applied community standards test to the admissibility of evidence obtained by subterfuge. The court pointed out;"That the reference by the High Court, as by this Court, to the community standards in this respect is not any notion of populist public opinion. Rather, this refers to community standards concerning the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement. " And;“The meaning of community standards, in any particular legal context, is a question of law; whether the application to the circumstances of a particular case produces a particular result may be regarded as a question of fact. Community standards in this context are not the same as popular opinion or vulgar prejudice: they are the expression of standards that reflect the fundamental values of our society so far as the application of the criminal law is concerned, including, as particularly relevant here, the principle of equality before the law or equal justice." In Birchley v Couchy McGill DCJ said;"The application of current community standards in the relevant context and circumstances is a matter for the magistrate, to determine as a question of fact. Again, when considering the community standard the court must have regard to context and circumstances in which the words were used. In Edbrooke v Hartman Wylie QC DO said; "However, they do contain certain observation or comments of mine which emphasize the need to always bear in mind that part of the legal test requires determination of the context and circumstances in which the impugned language was used and of course the community standard in regard to the use of such language in that context and those circumstances. There is no prescribed list of statutorily verboten words. The community standard is not an immutable one, fixed from a past era; it is the standard at the time the language is used. .........As the tribunal of fact, the stipendiary magistrate had to, and now on these appeals I must, identify the relevant community standard and that must be done beyond reasonable doubt. The benefit of any doubt as to, or difficulty in divining, the current community standard as to the use of a word or of words in the relevant context and circumstances must, as a matter of law, be given to the defendant. " In Coleman v Power the Chief Justice of the High court said: "Concepts of disorderly or indecent or offensive vary with the time and place and may be affected by the circumstances in which the relevant conduct occurs." Disorderly Conduct In Barrington v Austin & Oths, Napier J said;"...I have no doubt that these words `disorderly behaviour', refer to a substantial breach of decorum which tends to disturb the peace or interfere with the comfort of other people who may be in, or in the vicinity of, the street or public place." In Donnelly v McDonald, Wylie DCJ said: “s 7(1)(e) is intended to strike at conduct, which is lewd or prurient or involves moral turpitude, conduct in the form of some intentional bodily act. The offence is not concerned with conduct which is merely unseemly or in bad taste. And it must be conduct such as to merit punishment by the criminal law." Section 7AA and now Section 6 of the Summary Offences Act provides that to commit a public nuisance the behaviour must not only be offensive but that it must interfere or be likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public. In Butterworth v Geddes, Forde DCJ said; "If only one of the persons in the street was to have his or her enjoyment interfered with by the conduct of the appellant whilst that person was in the street, then the element of the offence is established. It is able to be inferred from the nature of the conduct that it was likely that the appellant's conduct did interfere with the peaceful passage through or enjoyment of anyone passing by or hi the street at the material time. " In McLennan v McLennan, McGill DCJ stated; "...Likely" in my view does not in the statute mean more probable than not, but it must at least involve a real, not remote likelihood, something more probable than a mere chance or risk." Move Along Directions Commonly accompanying charges of public nuisance and resist arrest are move on directions and/or the failure to move-along or comply with a lawful direction. The same principals apply here in that, the directions must be considered lawful. In Queensland, these types of orders originally only applied to specific areas (usually a CBD) of a local government area however, these directions can now be given to anyone, anywhere in Queensland and in New South Wales . Section - 197 Directions generally relating to public places(1) A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person's behaviour or presence in the place (referred to in this Part as "relevant conduct" )—(a) is obstructing another person or persons or traffic, or (b) constitutes harassment or intimidation of another person or persons, or (c) is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or (e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess. (2) A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of—(a) reducing or eliminating the obstruction, harassment, intimidation or fear, or (b) stopping the supply, or soliciting to supply, of the prohibited drug, or (c) stopping the obtaining, procuring or purchasing of the prohibited drug. (3) The other person or persons referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in. (4) For the purposes of subsection (1)(c), no person of reasonable firmness needs actually be, or be likely to be, present at the scene. The Law Enforcement (Powers and Responsibilities) Act also provides for Move-on directions to intoxicated persons in public spaces separately in New South Wales under Section 198. In Queensland, Section 48 of the Police Powers and Responsibilities Act provides for the direction whilst Section 791 provides for the offence. Section 48 - Direction may be given to person (1) A police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances. Examples for subsection (1)— 1) If a person sitting in the entrance to a shop is stopping people entering or leaving the shop when it is open for business and the occupier complains, a police officer may give to the person a direction to move away from the entrance. 2) If a group of people have been fighting in a nightclub car park, a police officer may give the people involved in the fight a direction to leave the premises in opposite directions to separate the aggressors. 3) If a person has approached a primary school child near a school in circumstances that would cause anxiety to a reasonable parent, a police officer may give the person a direction to leave the area near the school. (2) However, a police officer must not give a direction under subsection (1) that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of— (a) public safety; or (b) public order; or (c) the protection of the rights and freedoms of other persons. Examples of rights and freedoms for subsection (2)(c)— 1 the rights and freedoms of the public to enjoy the place 2 the rights of persons to carry on lawful business in or in association with the place (3) Without limiting subsection (1), a direction may require a person to do 1 of the following—(a) leave the regulated place and not return or be within the regulated place within a stated reasonable time of not more than 24 hours; (b) leave a stated part of the regulated place and not return or be within the stated part of the regulated place within a stated reasonable time of not more than 24 hours; (c) move from a particular location at or near the regulated place for a stated reasonable distance, in a stated direction, and not return or be within the stated distance from the place within a stated reasonable time of not more than 24 hours. (4) The police officer must tell the person or group of persons the reasons for giving the direction. Section 791 - Offence to contravene direction or requirement of police officer (1) This section applies if a person is given a requirement or direction under this Act and no other penalty is expressly provided for a contravention of the requirement or direction. (2) A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse. Penalty— Maximum penalty— (a) for contravening a direction given under section 48 — (i) within licensed premises, or in a regulated place located in the vicinity of licensed premises; or (ii) in a public place located in a safe night precinct—60 penalty units; or (b) for contravening another requirement or direction relating to a relevant law for which the penalty for a contravention of a similar requirement or direction made by a public official under the relevant law is more than 40 penalty units—the maximum penalty under the relevant law for the offence; or (c) otherwise—40 penalty units. (2) However, for a contravention of a requirement made by a police officer under section 17 or 18 , the person may be prosecuted for a contravention of the relevant authorising law or subsection (2) , but not both. (3) Unless otherwise expressly provided, it is a reasonable excuse for a person not to comply with a requirement or direction to give information if giving the information would tend to incriminate the person. (5) It is not a reasonable excuse for a person not to comply with a requirement or direction given by a police officer under chapter 17 that complying with the requirement or direction would tend to incriminate the person. Generally speaking, there are no limitations to the type of directions police officers are able to give, provided that the direction is reasonable in the circumstances for the purpose of reducing or eliminating the relevant conduct. If the move on direction is provided to an intoxicated person, the police may have the power to direct the person to not return to the area for a specified period of time. When providing a direction, the police (if they aren’t in uniform), are generally required to provide evidence that they are a police officer by giving their name, station where they are based, and the reasons behind the direction. Once a direction has been given and the person does not comply, the police officer is then required to warn the person that they are legally compelled to obey the direction and that failure to comply could amount to a criminal offence. If the person still fails to comply with the direction, the police officer must then inform the person that failure to comply is an offence. One of the more recent authorities regarding Police Powers to issue Move-Along directions and charge individuals with non-compliance is the decision handed down in Rowe v Kemper .
Rowe v Kemper
Rowe, a 65-year-old homeless man was washing his clothes in a public toilet block in the Queens Street Mall, Brisbane when a Council cleaner Mr Demane, approached Mr Rowe and asked him to leave so that he could clean the facility. Mr Rowe attempted to negotiate with Mr Demane about staying longer however, there began an argument, and the Police were called.
Four Police officers arrived and told Mr Rowe he would need to leave however, Mr Rowe became defiant and told the Police he was not doing anything wrong and did not have to leave, so Police issued him with a formal direction to leave before arresting him and charging him with failure to follow a Police direction and Assault/Obstruct Police in the performance of their duties. Mr Rowe was originally found guilty of an offence against s 445(2) of the Act (contravening a police direction given under the Act) and of an offence against s 444(1) of the Act (obstructing the respondent, Constable Kemper, in the performance of his duties) however, Rowe was acquitted of both offences on appeal with the Court determining the arrest unlawful. Interestingly, Police were of the opinion Mr Rowe was going to assault them, informing their decision to arrest him without giving him the opportunity to comply with the direction . The Police told the Court they formed the view Mr Rowe would assault them as he was being verbally defiant, but the Court held that any reasonable suspicion he was going to assault them, could only be based on past and present actions, not those in the future and Mr Rowe had not yet shown any signs of aggression.
The Court also held that a move-on direction was unnecessary and that if it was necessary for Mr Demane to clean the toilets without Mr Rowe being present, that it was only necessary to prevent Mr Rowe from entering whilst cleaning was being conducted and not the full 8 hours as per the direction.
Justice Holmes found that Mr Rowe did not contravene the direction of Police because he was only warned he could be arrested, and not that failure to comply constituted an offence whilst Justice McKenzie also found, that they did not give him a reason to comply and that, as a 65-year-old man, he needed time to comply and: “Police officers whose lot is to maintain good order and public safety in public places face a multitude of situations which often develop suddenly and have potentially unpredictable outcomes. Officers are required to make assessments, in real time, of the nature of the behaviour and how to respond to it so that good order is restored by means appropriate in the circumstances. Not infrequently, as in this case, the person whose conduct attracts attention will be disposed to be unco-operative when common-sense would suggest that a degree of give and take would avoid an escalated confrontation”. Justice McMurdo P held that; “Constable Kemper reacted disproportionately to Mr Rowe's argumentative, non-conforming behaviour in giving him the direction in unreasonably broad terms. His direction to Mr Rowe under section 39 , was not reasonable in the circumstances and was not a "direction under this Act" in terms of s 445(1) . He also acted unreasonably in the circumstances in not complying with, at least, s 391(3) (giving a reasonable opportunity to comply with the direction when it was practicable to do so) before purporting to arrest Mr Rowe under s 445(2) . It was unreasonable for Constable Kemper to have suspected that Mr Rowe had committed any offence against s 445(2) for contravening his direction so soon after he had given it.” This case not only highlights the importance of Police responsibilities when issuing move-on orders to individuals but also, making other directions as well. If the Police issue a direction, it must be done so within their powers given to them under the Act . The Courts must consider whether the provision of a direction is reasonable, if the direction is reasonable in nature and scope and whether the defendant was given enough opportunity to comply. Indigenous Australians Over-Representation Following the Royal Commission into Aboriginal Deaths in Custody the Queensland Law Society, in consultation with First Nations stakeholders, actively advocated for law reform to address the overrepresentation of Aboriginal and Torres Strait Islander people in Australia’s justice system however, Aboriginal deaths in custody are not the result of this over-representation. When you consider each case, you will find that these deaths were mostly preventable and only occurred because of Police not following procedures, often whilst in the watchhouse. Aboriginal deaths in custody are not prevented by taking less people into custody, although that may contribute to a reduction statistically, the prevention will only occur because of Police officers following the internal processes and procedures. I have personally experienced poor treatment in the watchhouse and witnessed the inhumane treatment of indigenous individuals. The issue of discrimination arises in each of the above offences. There is much literature highlighting the discrimination these types of public space offences cause among our homeless, mentally ill, and indigenous Australians despite Our State and Federal Governments attempts to ensure equality through the enactment of legislation such as, the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1991 (Qld) . Due to increased visibility in public spaces, homeless people naturally attract greater Police attention and Queensland has the highest rate of homelessness than any other Australian State . Of those individuals that are experiencing homelessness, Indigenous Australians are overrepresented. A 2005 study conducted by the Institute of Health and Welfare (AIHW) found that the rate for Indigenous Homelessness was approx. 18 per 1000 compared with just 6 for non-indigenous Australians . Tamara Walsh of the University of Queensland suggests, in relation to the public space offence of ‘failure to comply with a move-along direction that, ‘whilst the powers may not be intended to target the young, Indigenous, the mentally ill and homeless, such is their practical effect, as it is these groups who are the most regular users of public spaces.’ An aboriginal man, subjected to a move-on direction in Queensland stated, ‘I was told by Police, that I was not allowed to sleep in the park. But I was born outside in a windbreak in the Eastern Tanami Desert They can’t move us, I like sleepin out’. Another Indigenous man was quoted as saying the Police ‘target black people’ and ‘when they have nothing else to do, they come up to us and say if we are there next times, they will lock us.’ A personal account reflected in the statistics and study of Paul Spooner. The study found that although indigenous people represent just 4% of the population, 37% of individuals issues a move-along direction by Queensland Police were indigenous. It is true that, Indigenous Australians have a well-recognised cultural and social connection to the land and that, any offence which results in disadvantaging or discouraging that use is discriminatory. The use of public spaces, especially in regional Queensland, is more prevalent than other groups. The way these move-on powers and other public space offences are prosecuted, is a matter entirely for the Queensland Police Service as the Police Powers and Responsibilities Act allows for ‘subjective judgements and the exercising of discretion. The legislation that provides for these offences is not directly discriminative however, it is the application by the Queensland Police that ultimately produces indirectly discriminative outcomes. In 2000, the Honourable Curtis Pitt, Member for Mulgrave and Speaker of the Legislative Assembly commenting on the introduction of move-on powers that, ‘By and large, the success of this legislation will depend on the way in which our Police Service actually implements it.’ Indigenous Access to Legal Representation and Human Rights Many Indigenous Australians are unable to read or write and are not provided with the support they need to attend Court. When they do attend Court, Indigenous and other disadvantaged individuals are not provided with adequate support such as mental health assessments, drug and alcohol referrals or anything of that nature for summary offences as they are seen as the Courts as less serious and unlikely to result in incarceration. Article 14(3) of the ICCPR states that everyone has the right to legal representation where the interests of justice so require yet again, because most of these offences are dealt with by way of fine, many individuals attend Court unrepresented and may be disadvantaged further for failing to attend Court, where warrants are issued, and additional charges are made. Consider that a large percentage of indigenous Australians, the mentally ill and homeless are living below the poverty line, the payment of a fine has a discriminatory effect given their inability to pay such as I mentioned in the ‘begging’ example. Further, Magistrates in Queensland do not always consider a defendant’s ability to pay a fine before issuing one, often, if a defendant expresses this inability to the Magistrate the Magistrate requests that the fine is referred to SPER so that it can be paid off over a period however, this is still further disadvantaging the individual, likely receiving a government support payment. Similarly, Article 26 of the ICCPR states that,‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit and discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.’ The Australian Human Rights Commission defines discrimination as,‘Any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.’ Is Racial Discrimination a Breach of the Law? It is submitted that the indirect discrimination applied in relation to the offences above, violate both the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1991 (Qld) with this Act prohibiting laws that indirectly or directly discriminate based on race, disability, or age. I am currently working on providing additional information relating to; your Rights and Responsibilities In Custody and; What To Do When You Have been Mistreated By Police. Note: The information on this page is general in nature and isn’t legal advice. For advice about your specific situation, get legal advice from a lawyer.