DISTRICT COURT OF QUEENSLAND

CITATION:	Moxey v Commissioner of Police [2024] QDC 98	
PARTIES:	SAM DAVID MACKAY MOXEY
(applicant/appellant)
v
COMMISSIONER OF POLICE 
(respondent)	
FILE NO:	81 of 2023	
DIVISION:	Appellate	
PROCEEDING:	Appeal against conviction	
ORIGINATING COURT:	Magistrates Court at Cairns	
DELIVERED ON:	21 June 2024	
DELIVERED AT:	Cairns	
HEARING DATE:	15 April 2024	
JUDGE:	Fantin DCJ	
ORDER:	1.	The application for extension of time to appeal is allowed.
2.	The appeal is allowed.
3.	The convictions are set aside.
4.	A retrial is ordered before a different Magistrate.
5.	Within 14 days, each party is to file and serve written submissions (not exceeding 4 pages) with respect to costs.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where applicant convicted after a summary trial of two offences under s 790 of the Police Powers and Responsibilities Act 2000 (assault police and obstruct police) – where the applicant appeals the convictions – where police officers attended hotel in response to call about disturbance – whether police officers acting in performance of their duty – whether arrest was lawful pursuant to s 365(2) Police Powers and Responsibilities Act 2000
Legislation 
Criminal Code Act 1899 (Qld) ss 254, 340(b)
Justices Act 1886 (Qld) ss 222, 223, 224(1)(a)
Police Powers and Responsibilities Act 2000 (Qld) s 3 sch 6 (definition of ‘reasonably suspects’), ss 120, 365(2), 393, 398(a), 403, 404, 790(1)(a), 790(1)(b)
Cases
Allesch v Maunz (2000) 203 CLR 172
Bulsey v Queensland [2015] QCA 187 
Burke v State of Queensland [2014] QCA 200
Coleman v Power (2004) 220 CLR 1
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
George v Rockett (1990) 170 CLR 104
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
R v Fuentes (2012) 230 A Crim R 379
Re K (1993) 46 FCR 336
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679
Teelow v Commissioner of Police [2009] 2 Qd R 489
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police [2014] QCA 121	
COUNSEL	The applicant appeared on his own behalf
T Grasso for the respondent	
SOLICITORS	The applicant appeared on his own behalf
Office of the Director of Public Prosecutions for the respondent 	
Overview 
[1]	On the night of 25 April 2022, police were called to Dunwoody’s Hotel in Cairns about a disturbance in the pokies lounge. They were told that there had been a fight involving three men, who had left via a rear exit.
[2]	The officers located three men outside. The applicant, Mr Moxey, was one of them. Senior Constable Riordan immediately told the men they were under arrest for assault. The applicant became argumentative and uncooperative. Riordan attempted to place him in handcuffs. There was a brief struggle in which the applicant and Constable Graudins Reid fell to the ground. Riordan then tasered the applicant.
[3]	The applicant was charged with:
1.	assaulting a police officer (Graudins Reid) in the performance of her duties contrary to s 790(1)(a) of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’); and 
2.	obstructing a police officer (Riordan) in the performance of his duties, contrary to s 790(1)(b) PPRA.  
[4]	After a summary trial before an Acting Magistrate in Cairns, the applicant was found guilty of both offences. He was fined $150 for each offence. Convictions were not recorded. 
[5]	He applies for an extension of time within which to appeal and appeals pursuant to s 222 of the Justices Act 1886 (Qld) (‘JA’). The appeal is against his convictions only.
Application for extension of time
[6]	The application for an extension of time and notice of appeal were filed on 5 September 2023, about one week out of time. The grounds relied upon for the extension were that: the applicant was a self represented litigant living and working in a remote location, with limited access to resources; he had sought advice on the necessary forms; and he was seeking specialist medical treatment for a health condition. The respondent does not oppose the short extension of time being granted. I am satisfied that the applicant has provided a satisfactory explanation for filing the notice of appeal out of time and that, pursuant to s 224(1)(a) JA, it is appropriate to extend the time for filing the notice of appeal. The application for an extension of time is allowed.
Summary of issues and conclusion
[7]	The applicant filed two outlines of argument referring to numerous grounds of appeal and attaching a separate document titled ‘Reference Index’. Some of the matters raised in those documents were not relevant or applicable and it is unnecessary to make findings about them. He argues that the verdicts were unreasonable and could not be supported, having regard to the evidence. 
[8]	The primary issues in the trial were:
1.	whether the officers were acting in the performance of their duties, specifically, whether Riordan’s arrest of the applicant without a warrant was lawful pursuant to s 365(2) PPRA;
2.	if yes, whether the applicant used force in resisting arrest;
3.	if yes, whether the force used by Riordan in making the arrest, and by Graudins Reid in assisting Riordan, was in each case reasonably necessary to overcome any force used by the applicant in resisting the arrest, for the purposes of s 254 of the Criminal Code (‘Code’);
4.	whether the applicant obstructed Riordan contrary to s 790(1)(b) PPRA; 
5.	whether the applicant assaulted Graudins Reid contrary to s 790(1)(a) PPRA; and
6.	whether the defence of compulsion did not apply.
[9]	For the reasons that follow, I have concluded that, upon the whole of the evidence, it was not open to the Acting Magistrate to be satisfied beyond reasonable doubt that the applicant was guilty of the charges. That is because there was insufficient evidence for the Acting Magistrate to be satisfied beyond reasonable doubt of the first issue – that Riordan’s arrest of the applicant without a warrant was lawful, and therefore that the officers were acting in the performance of their duties. 
[10]	The appeal must be allowed, the convictions set aside, and a retrial ordered. 
[11]	Because of the conclusions reached about the first issue, it is unnecessary to consider the others. 
Nature of appeal and statutory framework
[12]	The applicable principles for the hearing of such an appeal are not in dispute. To succeed, the applicant must demonstrate that the decision the subject of the appeal is the result of some legal, factual or discretionary error.
[13]	The appeal is by way of rehearing on the evidence before the Acting Magistrate (and any other evidence introduced with leave of this court) rather than a hearing de novo. The court must consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. 
[14]	The rehearing requires this court to conduct a ‘real review’ of the evidence in the court below and of the Acting Magistrate’s reasons to determine whether they have erred in fact or law. Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact.
Whether arrest without a warrant was lawful – summary of evidence at trial 
Officer Riordan
[15]	Riordan gave evidence. He said that at around 9:55pm, an urgent call for service came from Dunwoody’s:
The call was about a – a bar fight that was happening in the pokies room. When we arrived there … we were greeted there by one of the staff members who had called. They directed us to another staff member, who took us towards the McLeod Street exit of Dunwoody’s and gave us a – a very, very, very brief run-down of what had happened and pointed towards three people at the time on McLeod Street, which was the defendant – well, Mr Moxey and two of his friends. We jumped over towards Mr Moxey and his – his two friends, and I placed him under arrest for questioning an investigation [sic] in relation to an assault matter. Following that, we were trying to talk to Mr Moxey and his friends about just trying to get them to sit down so that we could go and watch the footage and investigate the matter. … I pointed to, like, each of them individually. I said, like, ‘Stop there’ and it was words to the effect of ‘you’re under arrest’, ‘you’re under arrest’, ‘you’re under – you’re arrest for assault’, ‘you’re under arrest for assault’, ‘you’re under arrest for assault’. [emphasis added]
[16]	Riordan described catching up with the men as they were walking out of Dunwoody’s down onto the McLeod Street side. They asked the men to take a seat. The applicant was quite argumentative. The applicant refused to sit down when asked, he was told again he was under arrest, and he continued to swear at the officers. Riordan decided to place the applicant in handcuffs because he was being uncooperative. He asked the applicant to place his hands in front of him and told him again he was under arrest. 
[17]	Riordan said he had his cuffs out and went to grab the applicant’s right arm. Graudins Reid was on the applicant’s left. Riordan went to grab his right arm and he saw Graudins Reid grab his left arm. The applicant tensed up, and pulled his arms away from them. Riordan’s cuffs ‘went flying out of his hand’ so Riordan grabbed the applicant’s right arm. The applicant tensed his arms and pulled down. Riordan said he took a step back and he saw the applicant push Graudins Reid down to the ground, down to his right hand side. Riordan then tasered the applicant and Graudins Reid restrained him.
[18]	Riordan was asked what power he used to arrest the applicant. He said he used section 365(2) and that ‘You can arrest a person for – in relation to a – to an indictable offence for questioning and ges- questioning and investigation in relation to that offence.’ 
[19]	Riordan’s evidence in chief continued:
What did Mr Moxey’s behaviour – what was the outcome of that in regards to that investigation? --- Sorry. What do you mean?
Mr Moxey’s behaviour, as we’ve seen in the body-worn, how did that affect your investigation into the reason that you were called there initially? --- Yeah. Well, obviously, then we had to deal with – with what we had then. So we – we arrested – unarrested Mr Moxey and his friends, and Mr Moxey got taken to the watch house. And then after that, we went to the – to the staff member that called us and had a look at the footage. So from that, Mr Moxey was charged for assault police and obstruct and taken to the watch house, and the footage was ceased in relation to the – to the initial call for the bar fight, and we dealt with it from there. 
[20]	When asked whether, when called to the address, he was executing his duties as a police officer, Riordan said yes. He later clarified in response to a question from the Acting Magistrate that he ‘unarrested’ the two friends but not the applicant.
[21]	The applicant, who was self represented at trial (and on appeal), cross examined Riordan. He asked ‘What did bar staff – what – what did they say to you ?’. The Acting Magistrate immediately interrupted saying ‘he can’t answer that, because that’s hearsay’.
[22]	The applicant then asked Riordan what gave him the reasonable suspicion to arrest him for assault. The officer said: 
Well, from what the informer told us, from what the triple zero caller had relayed to us through police communications and from us getting pointed at yourself, John and … Jack saying they were involved in the fight. I reasonably suspected that an assault had occurred, and that’s what I went to investigate. … at the time, we had been told that a fight had occurred, so … someone had been assaulted, and so that’s what we went to investigate … was that.
Is every fight an assault? --- Well, ini – initially, when you investigate them, yes potentially. You reasonably suspect that in a fight, someone has been assaulted, and then once you conduct your investigation, you go with whatever that leads you towards.  [emphasis added]
…
Did you offer – did you try communicating before arresting us? --- Yeah. Well, we called for you to stop, and then because I was investigating an indictable offence and I didn’t want you guys to leave the scene, I placed ---
Were we – were we leaving? --- Yeah.
We were leaving were we? --- Yeah. Well, you were walking down McLeod Street.
We – we returned to speak to you guys? --- Yeah. So when we were – when we were jogging to follow you guys, you guys were leaving the scene. And as part of the investigation, I wanted to keep you guys there, so that’s why I placed you under arrest for assault.
We’d returned back to you guys and then stopped. We were stopped? --- Okay.
Yeah. Did bar staff point us out directly, did they? --- Yeah.
…
Did they say that there’d been an assault or - - - ? --- Yeah. Well, they said that there’s been a bar fight. And then when they pointed at you, there was – there was no one else around. Like, there was just the three of - - -
At that point the Acting Magistrate intervened advising again that the officer could not give evidence about what other people say.
[23]	Riordan’s body worn camera footage was played and tendered.  I refer to this in further detail below.
[24]	The applicant cross examined Riordan about why he arrested him immediately when there was no evidence of an assault having occurred. The officer said:
So at the time, I reasonably suspected that an indictable offence had been occurred -  had occurred, of assault. … And from that, yourself, John and Jack were then leaving the scene of that indictable offence, because you guys were walking away. … And then as part of that, once Constable Graudins Reid and I caught up as part of the questioning and investigation in relation to that offence, I believed it was reasonably necessary to place the three of you under arrest for questioning and investigation in relation to that to keep you at the scene while we figured out what was happening, because we were investigating the indictable offence. … At the time, I saw you guys were leaving, and I wanted to keep you there, so that’s why I believed it was reasonably necessary to place you under arrest and then talk to you from there. [emphasis added]
Officer Graudins Reid
[25]	Graudins Reid gave evidence. In evidence in chief, she said:
We got an urgent call for service at Dunwoody’s Hotel … about three blokes fighting inside the hotel, and I recall that the job card said something about only two female staff members working at the time. So we urgently attended. … we were approached by one of the female staff members, who directed us to the back door and stated that the – that the three blokes that were involved had left on the street and walked out of the pub already. So we pursued them, just followed them. There was three blokes there, including the defendant. Two of them had sat down near sort of this cement thing. So we asked them to sit down to obviously relieve tension. So I walked up to – directly to the defendant. I said, “You were involved in a fight at Dunwoody’s”. He denied this. I to – told him to sit down. He refused to do so, and then there was a bit of conversation between me and him. Constable Riordan – Senior Constable Riordan came up, advised him that he was under arrest for assault and asked him to put his hands out. He’s refused, so I’ve gone in and tried to assist Constable Riordan with making the arrest. However, we were obstructed immediately. Mr Moxey was very combative, pushing us away. At some point when we were both hands-on with him, I’m not sure whether Senior Constable Riordan was pushed away from the defendant or whether he had disengaged from the fight. Whilst I still had – was hands-on with Moxey, he’s pushed me on my chest, causing me to fall over. As I’ve fallen down, I’ve grabbed his arm to break my fall and then he’s gotten back up whilst I was still on the ground and Senior Constable Riordan tasered him … [emphasis added]
[26]	Graudins Reid’s body worn camera recording was played and tendered. I refer to this in further detail below.
[27]	The police prosecutor then asked Graudins Reid ‘You said you were called to the location in regards to an assault?’, to which she answered yes. The question was improper because it was leading and it mischaracterised the evidence: the witness had not given evidence of being informed of an assault but rather that there were three men fighting. There was no objection or intervention. 
[28]	The prosecutor sought to clarify what information Graudins Reid had before she arrived:
What was the information you had before you arrived? --- That there were – it was in the pokies room. There were three blokes involved and, like I said, there were only two female staff members working. So it was in – in progress at the time.
Okay. And how did you link the defendant to that initial complaint? So we were told by – I’m not sure whether that was informed or pointed out at the time but the staff member that was there stated directly opened the door, pointed them out to us in the street.
[29]	In cross examination by the applicant, Graudins Reid agreed that the applicant had introduced himself. She repeated that she had said to him that he was involved in a fight and as a result she was asking him to take a seat along with the two others, to calm the situation. She accepted that at that time the applicant did not offer any threat or physical advance and at that time was not aggressive.
[30]	The applicant asked whether the officer could see them when they came out of Dunwoody’s and Graudins Reid said: ‘I don’t know exactly what I saw, but whether someone was running or I saw a group of you. I even maybe – yeah, maybe heard you guys talking. I don’t know but you guys were the only people on the street at the time.’
[31]	The applicant then asked questions seeking to clarify what information the officer had received and was acting upon. Again the Acting Magistrate intervened and refused to permit the questions on the basis that they were not relevant. The applicant pointed out (correctly) that the evidence to that point was only to the effect that the officers had been informed there were three males fighting, not that there had been a complaint of an assault. He emphasised that at that point there had been no report of assault nor any investigation into an assault. The Acting Magistrate refused to permit the questions.
[32]	Graudins Reid said that after the applicant was taken to the watchhouse, the officers viewed the CCTV footage from Dunwoody’s. It did not show the applicant involved in any fight. As a result, he was not charged with any offence arising from a fight at Dunwoody’s and in fact no person was charged with assault.
[33]	The applicant questioned why the bar staff were not subpoenaed, submitting that evidence of what they said to police would have been relevant to what information the police had and acted upon in making a decision to arrest him. Again, the Acting Magistrate said that that evidence was not relevant.
Defence case
[34]	The applicant opened his case saying he denied pushing Graudins Reid to the chest or forcing her to the ground. He said that he was pulled by police, with his hand behind his back, and they spun and fell. He said that after he returned compliantly to talk to police, he was arrested or told to sit on the ground. He had offered his name and said he had done nothing wrong. He felt rushed by police, and reacted to being arrested and charged. He accepted that his reactions were poor but said he did not push police or offer any significant obstruction.
Mr Whittle
[35]	The applicant called one defence witness, Mr Whittle, who was one of the other men who was present with him. Mr Whittle said that the applicant did not push the police. He said that the officer grabbed both the applicant’s arms, that the female officer slipped on the slippery grass hill while holding the applicant’s arm and went down and the male officer let go of the applicant’s arm and tasered him. In cross examination, he said the applicant was not involved in any altercation inside Dunwoody’s earlier. When police approached them, he sat on the garden bed.
Applicant
[36]	The applicant gave evidence. He said they left Dunwoody’s, went up the street, then saw the police come out. They turned around and went back towards the police, realising that they were going to have a conversation with them. They got back to the police, who immediately said ‘take a seat’ and within seconds, ‘you’re under arrest for assault’. He said to be told that he was under arrest for assault when he had in fact tried to diffuse the situation that had occurred inside Dunwoody’s caused him to react defensively. The effect of his evidence was that the officer rushed him with handcuffs, without warning or time to think, and he reacted impulsively.
[37]	He pointed out that police could have asked the bar staff what had occurred before arresting them. He said before arresting him the police did not caution him, indicate they wished to question him, or ask whether he was prepared to answer questions. He argued that the arrest was unlawful. He said the police occurrence report referred only to a report of males fighting, and there was no reference to an assault.
[38]	In cross examination, the applicant repeated that he had not been involved in a fight inside Dunwoody’s earlier, that after he and his friends left Dunwoody’s they turned around and came back to talk to the police. He emphasised that they were not, as claimed by police, leaving but had returned to speak to police. He said that initially he was compliant with police. He did not make them chase him. He voluntarily returned to police. He offered his name. He told them he had done nothing wrong. He only became reactive when he was arrested for something he had not done. He reaffirmed his version of events including that he did not push Graudins Reid. He accepted that later he was abusive and that it escalated after he was tasered. There was no evidence that the applicant was affected by alcohol. He said he ‘blew .05 at the police station’. 
The body worn camera footage
[39]	I viewed and listened to the relevant parts of the body worn camera recordings and read the accompanying transcripts. Below is a summary of what the recordings show.
[40]	At the time the officers walk through or past the pokies area of the hotel, the area is quiet. There is no fight or disturbance or emergency occurring. The officers leave the hotel via the exit. Graudins Reid immediately runs ahead to three men. The three men approach the officer. They are walking towards her, not away from her. They are not running away. 
[41]	The following exchange occurs immediately, and in quick succession:
Graudins Reid: Stop. Stop, mate. Take a seat guys. 
Applicant: What for? [arms outstretched]
Graudins Reid: Take a seat. You were fighting in Dunwoody’s. Don’t be a dickhead. Sit down.
Applicant: What for?
Graudins Reid: You were fighting in Dunwoody’s.
Applicant: The fuck have I done?
Graudins Reid: You were fighting in Dunwoody’s.
Applicant: Excuse me, I’ve done nothing.
Graudins Reid: So take a seat.
Applicant: Excuse me.
Graudins Reid: Take a seat.
[Riordan arrives. The following includes his recording as well.]
Riordan: Alright boys. Mate, you’re under arrest for assault. You’re under arrest for assault. And you’re under arrest for assault.
Applicant’s friend: Am I under arrest?
Riordan: Yeah, mate you’re under arrest.
Applicant’s friend: Can you please look at the footage.
Riordan: Yeah, mate, that’s what we’re gonna do. But we’re gonna keep you here while we do that.
Applicant’s friend: Thank you, I’ve just been assaulted.
Riordan: Cool, take a seat and we will figure it out.
Riordan: Hey mate, how are ya?
Applicant: Excuse me, am I under arrest?
Graudins Reid: Yes, so take a seat.
Applicant: Am I under arrest? Excuse me. My name is Sam.
Graudins Reid: Listen! I don’t care. Sit down and we will have a conversation. Sam – what’s your name, Sam?
Applicant: Sam Moxey. I’m happy standing [calmly].
Riordan: You’re under arrest, mate.
Applicant: For what?
Riordan: For assault.
Applicant: Stick it up your arse, brother. 
Riordan: You’re under arrest.
Applicant: Fuck you.
Graudins Reid: Don’t be an idiot. Take a seat.
Applicant: No, don’t you be an idiot. Get some reality in your fucking head.
Riordan: We’re trying to figure out what’s going on.
Applicant: Yeah, exactly. So don’t throw charges at me.
Applicant’s friend: Please, look at the footage. 
[42]	The body worn camera recordings are the best evidence. In conclusion, they show the three men approaching police, not running away. Once Graudins Reid and the men meet, the first thing that happens is that Graudins Reid immediately accuses the applicant of fighting in Dunwoody’s and calls him a dickhead.  The applicant responds that he has done nothing. Riordan arrives and immediately arrests all three men. There is no attempt by police at an enquiry, and there is no preliminary questioning about what may have occurred in Dunwoody’s. The applicant’s friend twice asks police to look at the footage. Riordan responds that ‘we’re gonna keep you here while we do that’ but there is no attempt before arresting them to ask the men if they will wait with police while the recording is checked. The police acted precipitately, which had the effect of escalating the tension and conflict. 
Acting Magistrate’s reasons
[43]	The Acting Magistrate gave ex tempore reasons following a short adjournment at the end of the hearing. She found that all the police officers knew was that there had been a fight of some sort in the pokies room and that the three men were somehow involved. She said that the officers did not know whether they had assaulted anyone. She found that the officers had yet to investigate what happened and needed the three men to remain at the scene. Riordan informed all the men they were under arrest for assault and told them to sit down. The applicant did not sit down. Things escalated very quickly. The applicant became uncooperative, resisted being arrested and became reactive. The Acting Magistrate found that Graudins Reid ended up on the ground as a result of the applicant resisting being handcuffed. She could not be satisfied that the applicant had pushed Graudins Reid to the chest. 
[44]	With respect to the question whether the officers were acting in the performance of their duties, the Acting Magistrate initially said: ‘So that’s not an issue. They were obviously working as police officers that night.’ Later in her reasons the Acting Magistrate made these findings:
So I’m going to just touch on the law now. So firstly, it is lawful for a police officer without a 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. So the fact that there is a fight, the officers were taken by staff directly to the three of you, that is more than reasonable suspicion. So the – that they were – what they did there I find to be lawful, the fact that they were going to arrest you for questioning the person about the offence.
[45]	The Acting Magistrate went on to make findings about whether the use of force was reasonably necessary but because of the finding I have made below that the arrest was not lawful, it is unnecessary to consider the evidence or findings with respect to this or any other issue.
Consideration
Refusal to allow cross examination about what information the officers had received
[46]	The Acting Magistrate erred in ruling that the applicant could not cross examine Riordan on what information he had received from the bar staff or police communications. The evidence sought to be elicited by the applicant in cross examination, while hearsay, was not sought to be led for the truth of its contents but rather to establish what information was known to the officer at the time he arrested the applicant. That evidence was clearly relevant to the factual basis upon which the officer said he had formed a reasonable suspicion that the applicant had committed an indictable offence. It was admissible. 
[47]	On appeal, the respondent conceded that the evidence was admissible and that the Acting Magistrate erred in refusing to permit questioning about it, but submitted that no miscarriage of justice occurred because some evidence on that topic was able to be elicited without intervention. That some questions were able to be asked and answered on the topic does not ameliorate the unfairness to the applicant in the Acting Magistrate’s refusal to permit this line of questioning. Nor am I satisfied that the issue was able to be fully explored in the questions that were asked and answered. 
[48]	The Acting Magistrate’s refusal to permit questioning on this issue resulted in a miscarriage of justice because it prevented the prosecution and defence ascertaining what information the officer had received and later relied upon in purporting to form a reasonable suspicion. On this ground alone, the appeal must be allowed, the convictions set aside and a retrial ordered.
Whether the arrest was lawful 
[49]	The following observations of Gleeson CJ in Coleman v Power, referring to offences under s 340(b) of the Code and of obstruct police under s 120 of the PPRA, are apt:
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. 
… 
An officer who unlawfully arrests a person is not acting in the execution of his or her duty. 
…
If the arrest is not made while executing or performing the duty, the authorities establish that the “assault” on the officer is irrelevant because the prosecution has failed to prove an essential element of the offence – that the officer was acting in the execution or performance of his or her duty when or after the “arrest” was made.
[50]	Riordan said that, in arresting the applicant, he acted pursuant to s 365(2) PPRA. That subsection states:
(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.
[51]	The subsection should be read in conjunction with ch 15 PPRA. Chapter 15 deals with ‘Powers and responsibilities relating to particular investigations and questioning’. Part 2, Investigations and Questioning, prescribes the circumstances and length of time in which a person can be detained by police for investigation and questioning.  Part 2 applies only to a person (relevantly) who is lawfully arrested for an indictable offence, including if the person is arrested under s 365(2) for questioning the person about the offence or investigating the offence: PPRA s 398(a). Part 2 does not apply to a person who voluntarily agrees to questioning or to assist in an investigation and who is not under arrest.  
[52]	If the arrest under s 365(2) is lawful, it permits an officer to exercise powers of detention that are not otherwise available. Section 403 Initial period of detention for investigation or questioning, provides:
(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.
[53]	A person must not be detained for more than eight hours, unless that period is extended under that division: PPRA s 403(2). The detention period starts when the person is arrested for the indictable offence: PPRA s 403(5)(a). Section 404 provides a number of matters which must be taken into consideration when deciding what is a reasonable time to detain a person under section 403.
[54]	In Burke v State of Queensland, Jackson J discussed in detail the origin and purpose of s 365(2). He observed, firstly, that it was intended to alter the pre-existing law and secondly, that it operates in derogation of one of the fundamental rights or liberties which attracts the principle of statutory interpretation now described as the ‘principle of legality’. He observed:
[82] Section 365(2) should not be seen as a general detention power which can be engaged simply by stating the grounds under that sub-section if they do not in fact exist. It operates in accordance with its terms, which restrict the power of arrest to circumstances where, as a jurisdictional fact, the police officer reasonably suspects that the person to be arrested has committed or is committing an indictable offence, and to those cases where the purpose of the arrest is for questioning about the offence or investigating the offence under Ch 15 of the PP&RA. Nothing less will do.
[83] Under s 393(1) of the PP&RA, if a police officer arrests a person without warrant for an offence, they ‘must, as soon as reasonably practicable, take the person before a court to be dealt with according to law’. The extraordinary nature of the power under s 365(2) is illustrated by the fact that s 393(1) does not apply to a person arrested under that section who is later released without having been charged (s 393(2)(f)) and is further recognised by the statutory constraints applying to the detention for investigation or questioning contained in Ch 15 of the PP&RA. They include the time limits upon detention for investigation or questioning imposed under ss 403 and 404.
[84] Almost 70 years after Sir Frederick Jordan’s statement was made, as set out above, statute recognises the need to trench upon the liberty at common law of persons suspected of having committed an offence in some circumstances. The Ogpu [fn: The secret police of the USSR from 1922 to 1934] may now be forgotten and even the Gestapo’s misdeeds may have faded from the consciousness of contemporary Australia. But our tolerance of methods of arrest for the purpose of investigation or questioning, to the extent that they are authorised by statute, requires that the limits of the proper exercise of such power are not lost in hollow lip service to or rote incantation of the purposes for which an arrest without warrant may be made under s 365(2). [emphasis added]
[55]	The power to arrest without warrant in s 365(2) was conferred for an express purpose: to question a person about the offence, or to investigate the offence. The power only arises if the officer exercising the power reasonably suspects the required jurisdictional fact. Here, it required Riordan to have formed a reasonable suspicion that the applicant had committed an indictable offence. 
[56]	There are three aspects to this. One is the actual state of mind of the arresting police officer, the second is its reasonableness, and the third is the purpose of the arrest.
[57]	As to the first aspect, there must be a subjectively held suspicion. The suspicion must be held by the arresting officer, not some other officer. 
[58]	A suspicion is not a degree of intellectual conviction as high as a belief. A suspicion was described in this way by Kitto J in Queensland Bacon Pty Ltd v Rees:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’.
[59]	As to the second aspect, the suspicion must be a ‘reasonable suspicion’. The PPRA defines it in this way:
reasonably suspects means suspects on grounds that are reasonable in the circumstances. 
There must exist some factual basis to reasonably ground the suspicion but it is unnecessary that there exist proof of the fact reasonably suspected.
[60]	In R v Fuentes Dalton J emphasised that a suspicion and a belief are different states of mind:
A suspicion is a state of conjecture or surmise. It is more than idle wondering. It is positive feeling of apprehension or mistrust, but it is a slight opinion without sufficient evidence. Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief. Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist. There must be sufficient factual grounds reasonably to induce the suspicion. The facts must be sufficient to induce the suspicion in the mind of a reasonable person. The suspicion must be reasonable, as opposed to arbitrary, irrational, or prejudiced. [emphasis added] [citations omitted]
[61]	Here there was evidence that Riordan held the necessary subjective suspicion. It is one thing for an officer to hold a suspicion that a person may have committed an indictable offence. It is quite another to hold that suspicion on reasonable grounds.
[62]	In his evidence in chief, Riordan did not refer to being told someone had been assaulted, only that there had been a bar fight. There was no evidence that he had been informed of a complaint of assault. His evidence in cross examination was ambiguous as to whether he had been informed that there was in fact an assault or whether he simply assumed that because he had been told that there had been a bar fight. 
[63]	Riordan said that he ‘reasonably suspected that an assault had occurred’. By itself, such a belief is not sufficient. Section 365(2) required him to reasonably suspect not merely that an indictable offence had occurred but that the applicant had committed it.
[64]	The only information the officer had received linking the defendant with the bar fight was from bar staff, who took the officers towards the McLeod Street exit, gave a ‘very brief run-down’ of what had happened and pointed towards three people on McLeod Street.
[65]	That information received no support from the police officers’ subsequent interaction with the three men before they were arrested. There was no evidence from the applicant (or anyone else in the group) of the applicant having committed an offence of assault. The information received by police was to the contrary. As soon as Graudins Reid met the three men, she accused the applicant of being involved in a fight at Dunwoody’s and he denied this, twice. 
[66]	The applicant was one of a group of three men who left the premises together, and returned to speak to police together. One of the applicant’s companions told the officers that he had been assaulted and asked them to view the footage. This also supported an inference that, if there had been an assault, someone other than one of the three men may have committed it. 
[67]	Despite this information, Riordan immediately arrested the applicant. 
[68]	As to the third aspect, in order to be lawful the purpose of the arrest must have been for questioning the applicant about the offence, or investigating the offence. Riordan’s evidence was to the effect that he arrested the applicant to prevent him leaving the scene so he could then go and watch the CCTV footage to investigate the offence. But the evidence does not support that. It supports a finding that the applicant was not leaving the scene at the time he was arrested, but rather had returned to speak to police when they called out to the three men. The applicant did nothing to indicate he was not prepared to answer questions. He volunteered his name. Before arresting him, Riordan did not ask the applicant any questions about what had occurred in Dunwoody’s, did not ask him his address, did not ask him if he would wait while the officers checked the CCTV footage, and did not ask him if he would wait, or accompany the officer, to receive a notice to appear. This was not the subject of any questioning at trial.  
[69]	In those circumstances, in my view, an arrest to secure his presence to enable that to be done was not an arrest ‘for questioning the person about the offence’ or ‘investigating the offence’.  
[70]	Riordan expressly said in evidence that the power he relied upon to effect the arrest was s 365(2). Riordan did not rely upon s 365(1), which provides that it is lawful for a police officer, without warrant, to arrest an adult the officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for one or more of 12 reasons identified in subsections (a) to (l). Subsection (h) is ‘to prevent a person fleeing from a police officer or the location of an offence’. None of the reasons in subsections (a) to (l) was relied upon in the court below nor debated in the appeal to this court, so it is unnecessary to consider them. 
[71]	The arrest was effected by Riordan with the assistance of Graudins Reid. The applicant resisted and protested verbally in abusive and derogatory language which did him no credit and attracts no sympathy, but those are not relevant factors.  After the applicant was tasered and handcuffed, he was transported whilst under arrest to the watchhouse. The evidence established that he was not further questioned about the incident in the bar at Dunwoody’s. Riordan viewed the CCTV footage from Dunwoody’s. The applicant was never charged with any offence arising from the incident in the bar.  
Conclusion and orders
[72]	In conclusion, the evidence did not disclose sufficient factual grounds reasonable to induce the suspicion that the applicant had committed an indictable offence of assault. In arresting the applicant, Riordan was not acting in the performance of his duties. Although Graudins Reid may have acted in good faith, her conduct was also unlawful and she was not acting in the performance of her duties when assisting the first officer Riordan to effect an unlawful arrest.
[73]	Because of the conclusions I have reached about this issue, it is unnecessary to consider the other grounds of appeal.
[74]	The appeal must be allowed and the convictions set aside. 
[75]	Because of the Acting Magistrate’s refusal to permit questioning about what information the police officers received, it is unknown what further evidence, if permitted to be adduced, may have shown, and whether it would have supported the prosecution or the defence. Therefore, this is not a case where it is appropriate to enter verdicts of acquittal on appeal. 
[76]	The matter must be remitted to the Magistrates Court for a new trial. Whether there is a further trial is a matter for the discretion of the prosecuting authority. Because of the adverse findings made by the Acting Magistrate, it is preferable that if there is a new trial, it is heard by a different Magistrate. 
[77]	The applicant seeks costs. The respondent submitted that if the appeal were allowed the parties should be permitted to make further submissions with respect to costs. Each party is to file and serve written submissions (not exceeding 4 pages) with respect to costs within 14 days of delivery of these reasons. Subject to any request for an oral hearing, the question of costs will be determined on the papers.