DISTRICT COURT OF QUEENSLAND

CITATION:	Newell v Weston [2015] QDC 158	
PARTIES:	Sergeant Michael James NEWELL
 (appellant)
v
 Anthony James WESTON 
(respondent) 	
FILE NO:	D2/15	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Magistrates Court at Gladstone	
DELIVERED ON:	18 June 2015	
DELIVERED AT:	Gladstone	
HEARING DATE:	17 June 2015	
JUDGE:	Kingham DCJ	
ORDER:	1.	Appeal dismissed	
CATCHWORDS:	APPEAL – APPEAL AGAINST DISMISSAL OF CHARGE – POLICE POWERS AND RESPONSIBILITIES ACT 2000 S634 – NON-COMPLIANCE WITH SAFEGUARDS - where the Magistrate found there was non-compliance with safeguards prescribed by s634 – where appellant argued it was not reasonably practicable for the officers to comply – where the evidence supported the Magistrate’s finding – where appeal dismissed
Police Powers and Responsibilities Act 2000 s634, s634(2)(a), s634(2)(b), s634(3), s634(4)
Summary Offences Act 2005 s11(2)
Justices Act 1886 s223
Rowe v Kemper [2008] QCA 175
Preston v Parker [2010] QDC 264
Bismark v Queensland Police Service [2014] QDC 152

COUNSEL:	S.A. Rankine for the appellant
No appearance for the respondent	
SOLICITORS:	Queensland Police Service for the appellant
No appearance for the respondent	
[1]	Police Officers responding to a call, found Mr Weston, strangely attired, inside a secure area of a chemical manufacturing plant operated by Orica Pty Ltd sometime after 9pm on 8 February 2014. When Sergeant Newell asked him to state his full and correct name, he failed to do so. Mr Weston was arrested, taken to the Tannum Sands Police Station and charged with a number of offences. On 27 November 2014, there was a summary hearing in relation to three charges: entering premises and commit indictable offence, trespass, and contravene requirement. The learned Magistrate dismissed the first two charges and the third was not proceeded with. This appeal now relates only to her Honour’s decision to dismiss the charge of trespass. 
[2]	Mr Weston did not attend the appeal hearing. I am satisfied on the affidavit of Paul Patty filed on 16 June 2015 that Mr Weston was aware of the hearing and has chosen not to participate. I have considered a document provided, apparently, by Mr Weston to the Police Station at Benalla. I found it impossible to discern its relevance, and it does not appear to address any issue I must consider on the appeal. In the absence of an application to adjourn the hearing, I proceeded to hear and determine the appeal.
[3]	The Notice of Appeal asserts her Honour’s decision to dismiss the charge of trespass was an error of law, founded on her Honour’s erroneous findings that there was no evidence to prove the charge and that the charge was not proved.
[4]	Having read her Honour’s reasons for decision, I am satisfied she did not make a finding that there was no evidence to prove the charge of trespass. Rather, she stated she was not satisfied the prosecution had satisfactorily made out the charge. Her reasons demonstrate the basis for that decision was the lack of evidence from the police witnesses about their compliance with s634 of the Police Powers and Responsibilities Act 2000 (PPRA) and her conclusion that these questions were a pre-requisite to the charge proceeding.
[5]	Trespass is an offence defined by s11(2) of the Summary Offences Act 2005 and is a declared offence under s634(4) of the PPRA. This means that certain safeguards apply to starting proceedings for the offence. 
[6]	Firstly, a police officer who suspects a person has committed a declared offence must, if reasonably practicable, give the person a reasonable opportunity to explain, in the case of trespass, why the person was at or entered the place. The learned Magistrate found there was no evidence either that the officers asked Mr Weston those questions or about why they failed to do so. That is conceded on appeal.
[7]	Secondly, an officer may start a proceeding against the person for a declared offence if, relevantly to this case, because of the person’s conduct, it is not reasonably practicable to give the person a reasonable opportunity to give an explanation. 
[8]	On appeal, Sergeant Newell argues the evidence establishes that it was not reasonably practicable to give Mr Weston an opportunity to explain his presence, a submission her Honour rejected at first instance.  That evidence related to Mr Weston’s appearance and demeanour, in the context of the time and place he was located and his refusal to respond to repeated requests to state his name. 
[9]	At the appeal hearing, counsel for the appellant confirmed the appeal would be determined on the finding about whether it was reasonably practicable to provide Mr Weston with a reasonable opportunity to explain his presence. If I found against Sergeant Newell on that issue, the appeal must be dismissed because mandatory procedures had not been satisfied. That approach to the appeal conforms to the reasoning of the Court of Appeal in Rowe v Kemper [2008] QCA 175 as applied in appeal decisions of this Court in Preston v Parker [2010] QDC 264 and Bismark v Queensland Police Service [2014] QDC 152, both of which dealt with charges of trespass.
[10]	The appeal is conducted as a rehearing on the original evidence. I am required to make my own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Given the scope of the issues raised on appeal, the rehearing will be confined to the evidence relevant to compliance with s634. Counsel confirmed it was only the evidence specifically identified in the outline that was relevant to the issue.
[11]	Sergeant Newell gave evidence that:
•	Mr Weston was wearing a full wet suit; motorcycle armour; boots; gimp mask; and studded dog collar.
•	When he approached and asked Mr Weston to get onto the ground, Mr Weston pointed his finger at him.
•	Mr Weston was transitioned to the ground and handcuffed.
•	Mr Weston was asked his name and didn’t reply. Mr Weston was warned a number of times about failing to state his name and he didn’t reply.
•	He was then arrested. 
[12]	Sergeant Newell said: 
“My awareness of what was going on was – was heightened and my thought processes were that this was a very high-risk situation and I was concerned for the – my safety and my partner’s safety just by the way that he was dressed and pointing at us and – especially considering the location he was in.’ 
[13]	Senior Constable Whitehead described Mr Weston’s appearance in similar terms to Sergeant Newell. When he arrived at the premises he gave Mr Weston some commands that Mr Weston did not comply with. He and Sergeant Newell then approached Mr Weston and put him to the ground. 
[14]	Senior Constable Whitehead thought Mr Weston was dressed as he was for a certain reason, although the officer did not identify what that might have been. He said verbal communications did not work and that increased his threat assessment. 
[15]	Mr Weston was arrested at the scene, but before he was arrested, both officers were able to speak to him. Sergeant Newell issued a requirement that he state his full and correct name. He went on to warn Mr Weston he would be arrested if he did not comply. When Mr Weston still did not answer, Sergeant Newell asked him and warned him two further times. Then Mr Weston said he was not ready to tell him and was arrested. 
[16]	Given the repeated requests and warnings prior to arrest, there is scant basis for the submission it was not reasonably practicable for the officers to ask Mr Weston to explain his presence.
[17]	The learned Magistrate squarely addressed the critical issue for this charge in her succinct reasons: 
“However, whilst his appearance was no doubt disconcerting and very concerning to persons coming across him, he was able to be asked questions, he did not agree to providing his name when asked, but he was able to be asked to do so on a number of occasions. He was able to be directed to do things and there is no reason why he was not asked those questions. There was nothing in the course of events that prevented an officer from asking the defendant those questions. It may be that they were – that no answer could have been given, but he was not afforded the opportunity to decide whether or not to answer such questions.” 
[18]	Respectfully, I concur with her Honour’s assessment. I too accept that the officers would have been feeling uncertain given the time and place, the circumstances in which Mr Weston was located, how he was attired and his non-responsiveness. Certainly the officers had good reason to believe Mr Weston would not explain his presence if he was given the opportunity to do so, but that is not the point. 
[19]	Mr Weston did not attempt to abscond. He was adequately restrained when he was repeatedly asked his name and warned about the consequence of failing to state it. He did not talk over them or do anything else at the scene that made it impracticable for either officer to ask him why he entered or was at the place.
[20]	There was no error in her Honour’s finding that the officers had not complied with s634 of the PPRA. That is the only point raised on appeal and determines the matter. I dismiss the appeal.