DISTRICT COURT OF QUEENSLAND

CITATION:	Mbuzi v Commissioner of Queensland Police [2015] QDC 257	
PARTIES:	JOSIYAS MBUZI 
(appellant) 
v 
COMMISSIONER OF QUEENSLAND POLICE 
(respondent) 	
FILE NO/S:	4408/14	
DIVISION:	 Criminal 	
PROCEEDING:	Appeal 	
ORIGINATING COURT:	Magistrates Court at Pine Rivers	
DELIVERED ON:	16 October 2015 	
DELIVERED AT:	Maroochydore	
HEARING DATE:	6 August 2015 	
JUDGE:	Andrews SC DCJ	
ORDER:	Appeal dismissed
I confirm the orders made on 9 October 2014 convicting the appellant of the offences of public nuisance and of assault or obstruct police officer in performance of duties and recording those convictions.  In respect of each conviction the appellant is fined $500 being a total fine of $1,000. I confirm the orders made on 9 October 2014 that the appellant pay witness costs of $162.50 and that the fines be paid within 1 month and in default of payment within that time that the appellant be imprisoned for 12 days.
The parties are at liberty to make written submission on the issue of costs of this appeal by filing and serving a copy of the party’s submission on costs of this appeal, if any, on or before 22 October 2015 and by filing and serving the party’s submission in reply on costs of this appeal, if any, on or before 29 October 2015.	
CATCHWORDS:	APPEAL AGAINST CONVICTION – conviction for public nuisance – where police asked appellant to produce driver licence ostensibly to determine if he was an unsupervised learner driver – whether lawful for police to ask – whether police knew appellant was not a learner driver – whether police were truly seeking to determine whether appellant was a learner driver – where appellant called police dumb and stupid and idiots - where appellant arrested – whether police arrested appellant for failure to produce driver licence or for public nuisance – whether appellant arrested for calling police dumb and stupid and idiots – whether one cannot commit an offence by the use of insults - whether appellant committed public nuisance – where infringement notices issued for public nuisance and resisting arrest – whether appellant paid the fines specified in the infringement notices – where prosecution offered no evidence in respect of the offences on a date listed for trial and when the appellant did not appear whether it had the consequence that the appellant could not be subsequently tried for the same offences – whether double jeopardy arose – whether the magistrate should have adjourned the trial because the appellant had instituted a proceeding in the Supreme Court for judicial review of the arrest  
Justices Act 1886 ss 222, 223; Transport Operations (Road Use Management) Act 1995; Summary Offences Act 2005 s 6; Police Powers and Responsibilities Act 2000 ss 58, 58(1)(c), 790 and Schedule 6 ; Acts Interpretation Act 1954 s 7(1); Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 s 5(11); Criminal Code Qld 1899 s 22(1); State Penalties Enforcement Act 1999 s 25; Vagrants, Gaming and Other Offences Act 1931 (Qld) repealed
Dewberry v Dickson [2011] QCA 238; 
Coleman v Power [2004] HCA 39; 
Mbuzi v Commissioner of Queensland Police Service [2015] QSC 30; 
Mbuzi v Murray [2012] QSC 83

SOLICITORS:	K Mant, legal officer instructed by the Commissioner of Police for the respondent	
[1]	This is an appeal pursuant to s 222 of the Justices Act 1886 against convictions on 9 October 2014 for two offences allegedly committed on 24 December 2011 being the offence of commit public nuisance and the offence of obstruct police officer in performance of duties. The particulars of the public nuisance were that the appellant behaved in a disorderly way. The appellant was fined a total of $1,000 and ordered to pay $162.50 costs of court with one month to pay, in default 12 days imprisonment with convictions recorded.
[2]	This is an appeal by way of rehearing on the original evidence. On the hearing of this appeal, I may confirm, set aside or vary the appealed order or make any other order in the matter which I consider just. A characteristic of an appeal ‘by way of rehearing’ is that the court is to rehear the matter on the record of the court from which this appeal comes – the Magistrates Court at Pine Rivers. Under the proper procedure, this court does not rehear the witnesses but draws inferences from primary facts, including facts found by the primary magistrate and facts not disputed. This appellate court’s power to draw inferences is as complete as that of the primary magistrate. Where the primary magistrate has accepted the evidence of one witness in preference to the evidence of another as a result of an assessment of the reliability of a witness, a District Court judge on appeal must give weight to that assessment. As was observed in Dewberry v Dickson [2011] QCA 238 by Fraser JA: 
in the appeal to the District Court, the judge was obliged to review the evidence, weigh the conflicting evidence, and draw his own conclusions, but in doing so the judge was bound to afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence. 
[3]	Notwithstanding that he has been declared a vexatious litigant, the appellant, Mr Mbuzi, was given leave on 7 November 2014, to proceed with this appeal. Execution of the order that he pay fines and costs was stayed. 
[4]	A trial in this matter was heard in the Magistrates Court at Pine Rivers on 9 October 2014. Three witnesses testified - Senior Constable Darren Edward Benn, Steven Craig Duffield and Mr Mbuzi. Evidence included a disc, exhibit 2, which contained an audio recording of at least a part of the exchanges between the appellant and police officers preceding his arrest by them on 24 December 2011. I am in as good a position to draw inferences from the recording on the disc as was the Magistrate below. Her Honour had an advantage which I do not have when it comes to assessing the evidence of the three witnesses. That advantage is that her Honour could see and hear the witnesses as they gave their evidence.   
[5]	During this appeal Mr Mbuzi read his affidavit filed on 20 May 2015 in this appeal proceeding.  He submitted that he could rely upon it as a result of an order made by his Honour Judge Reid in this proceeding.  Reference to the Court Order Sheet reveals that on 6 May 2015 his Honour Judge Reid ordered that Mr Mbuzi provide a bundle of documents on which “he wishes to rely on the appeal” to the respondent, and file a copy of such a bundle in the Court.  His Honour did not give leave to Mr Mbuzi to rely on evidence which had not been before the learned Magistrate.  Section 223 of the Justices Act 1886 is clear.  The appeal is by way of re-hearing on the original evidence given in the proceeding before the Court at Pine Rivers.  Ordinarily, an appellant is not entitled to rely on further evidence such as an affidavit which was not relied upon during the hearing below.  Mr Mbuzi was not given leave by Judge Reid to rely on fresh evidence.  I treated Mr Mbuzi’s request that I read his affidavit as an application for leave to adduce additional evidence.  The respondent did not oppose the affidavit’s being admitted into evidence.  On that basis, Mr Mbuzi was given leave to read his affidavit. I will have regard to it and to all other evidence which was before the court below. 
The evidence of Senior Constable Darren Edward Benn at trial
[6]	The evidence of Senior Constable Darren Edward Benn (“Benn”) was that at about 9.30am on 24 December 2011 he and Sergeant Holmes were conducting routine patrols at Brendale. That involved Sergeant Holmes, the passenger in the vehicle driven by Benn, conducting in-car computer checks on various vehicles they saw. Sergeant Holmes did the checks on the status of each vehicle’s registration and also its registered owner’s driver licence. The police vehicle was headed in a westerly direction on Kremzow Road. 
[7]	Benn observed a vehicle pass in the opposite direction with one occupant wearing a cap. The in-car computer in the police vehicle had shown to Sergeant Holmes something and, as a result, the sergeant told Benn something which led Benn to believe that the registered owner of the vehicle was a learner driver. In truth, as Mr Mbuzi explained, the registered owner was Mr Mbuzi’s daughter, Msilizha, a learner driver then aged 18 years and 4 months. Learner drivers are permitted to drive a vehicle on a road but are required to be supervised when driving. Because Benn had observed only one person in the vehicle when it passed the police car, Benn decided to determine whether the driver was an unsupervised learner. 
[8]	Benn gave evidence that he then had a conversation with Holmes and then executed a U-turn and activated emergency lights and followed the vehicle in an easterly direction hoping to check the driver’s licence. The sergeant had told Benn in the police car that the owner of the vehicle was a learner driver but did not say the owner was a female or say anything else about the owner.  Benn was not then aware that the registered owner was female or that the registered owner was 18. Benn was then occupied with driving safely while doing the u-turn and while pursuing the car identified by the sergeant. 
[9]	There was no evidence of the speed at which the police drove. Benn did not give oral evidence that he activated a siren. In a recorded conversation in exhibit 2 at a time in the record after Mr Mbuzi had been arrested and placed in the police car and when Benn was apparently engaging in a monologue, Benn said and recorded ‘from the moment we pulled this vehicle over we activated lights and sirens to pull him over so he was well aware we were police, he looked straight at me and kept walking’. In that record Benn said 3 things which went further than his oral evidence at trial: that ‘we pulled this vehicle over’, that police activated ‘sirens’ and ‘so he was well aware we were police.’
[10]	There was no evidence before the court that Benn knew, while he followed, either the age or gender of the person shown on the police car’s in-car computer to be the registered owner. As Benn was the driver it is not reasonable to infer that he read the details visible to Sergeant Holmes. 
[11]	Benn observed the vehicle turn left off Kremzow Road into the car park of the IGA shopping centre at Brendale. Benn deactivated the emergency lights on the police vehicle and turned left into the shopping centre. The vehicle Benn had been following parked and Benn parked the police vehicle behind it and slightly to the right. Benn gave evidence at trial, that he thought it was a light blue hatchback with Queensland registration 330MRM. It is uncontested that the vehicle’s colour had been white but the registration number was the number of the vehicle driven by Mr Mbuzi. Benn accepted that his recollection of the colour of the vehicle may have been mistaken because three years had passed and he accepted that the vehicle may have been white.
[12]	Almost immediately upon stopping the police vehicle, Benn saw the driver of the other vehicle get out of the vehicle and start walking away from him to the shops wearing a cap and with his back to Benn. As this happened Benn activated a voice recorder which he was carrying with him and he exited the police vehicle with Sergeant Holmes. 
[13]	Benn approached the other driver. It is not contested that Mr Mbuzi was the only occupant of the car and that he walked from the car towards the shops. Ben recalled his words to Mr Mbuzi were to the effect: “Excuse me sir. I need to talk to you.” 
[14]	Benn’s evidence was that he did not identify Mr Mbuzi, that Mr Mbuzi was immediately aggressive, loud and intimidating, that his whole demeanour was aggressive, that Benn put his hand out to stop Mr Mbuzi from walking away and that Mr Mbuzi swept at Benn’s hand saying ‘I don’t care who you are. You’re an idiot’ before Benn had even had an opportunity to explain why the police wanted to speak to Mr Mbuzi. Benn gave evidence that he tried several times to engage Mr Mbuzi in a civil conversation; that Mr Mbuzi’s ‘reaction was completely over the top’ and ‘unnerving’, and that Mr Mbuzi was ‘in my face’ and ‘extremely irritated’.
[15]	Benn gave evidence that the conversation was recorded. A disk was tendered and became exhibit 2. Benn gave evidence that the disk was accurate. It contained two conversations. The first was at the shopping centre and the second was at the watch house. It was only the first conversation that the parties referred to on appeal. 
[16]	Benn gave evidence that while he was speaking with Mr Mbuzi he observed a man with two young children walking across the car park from the shops and watching what was going on and, in particular, watching Mr Mbuzi; that Benn saw that the man appeared to be concerned by the way Mr Mbuzi was reacting to the police and saw that man usher his two children to their car. 
[17]	According to Benn, very soon after the man ushered his children to the car, Sergeant Holmes moved towards Mr Mbuzi to place him under arrest. Benn said that Mr Mbuzi struggled, resisted, tried to pull his arm away and that Benn then moved and grabbed hold of Mr Mbuzi’s left arm and that Mr Mbuzi was placed over the bonnet of the vehicle and handcuffed and placed in the police vehicle and that when Sergeant Holmes moved forward to place him under arrest Mr Mbuzi struggled physically to prevent the handcuffs being put on while telling the police that they were going to pay for it. Benn said Mr Mbuzi was upset and physically quite strong and that Mr Mbuzi made it harder to effect the arrest. Benn said that Mr Mbuzi was arrested for public nuisance. Benn wrote down the number plate of the car into which the passing man and his two children had gone.
[18]	The two police officers then transported Mr Mbuzi to the Pine Rivers watch house where Sergeant Holmes issued two infringement notices at the charge counter. Mr Mbuzi was then asked a series of questions and was provided with details of Benn and Holmes. 
[19]	Benn’s evidence was that the only way for him to determine if a person was a learner driver was to approach the person and request to see the person’s driver licence. Benn gave evidence that he did not know at the time he approached Mr Mbuzi in the car park that the learner driver registered as the owner of the vehicle was a female. Mzilisha, is the spelling of Mr Mbuzi’s daughter’s first name. It was Benn’s evidence that, because of the way Mr Mbuzi spoke to the two police officers, at no time in the car park when speaking with Mr Mbuzi did Mr Mbuzi give Benn the opportunity to explain why the police wished to see his driver licence. 
[20]	I observed during the appeal argument and when listening to exhibit 2 that Mr Mbuzi speaks English well. But English appears to be a second language for him. Mr Mbuzi sometimes responds to the literal meaning of a proposition he hears when it would be uncommon to respond that way.
[21]	That idiosyncrasy is relevant because it helps partly to explain a part of the recorded conversation between Benn and Mr Mbuzi. Benn did not give evidence that the police required Mr Mbuzi to stop or to pull over. Benn did not give evidence that sirens were on so as to suggest that police required Mr Mbuzi to stop. Stopping Mr Mbuzi may have been Benn’s ambition but Mr Mbuzi had parked in the shopping centre car park before a time when I can be satisfied that any requirement had conclusively been made to him that he stop the car. Senior Constable Benn stated in the recorded conversation “…you’ve been pulled over” and Mr Mbuzi replied “Who told you that I’ve been?” The uncontested evidence in this case is that the vehicle driven by Mr Mbuzi had stopped and that he had alighted from it before police required anything of him. The police car had parked in the car park of the shopping centre and the two police officers approached Mr Mbuzi on foot and from behind him as he was walking away from his daughter’s car. While it is possible that Mr Mbuzi had been aware that police were pursuing him and wanted him to stop, I am not satisfied by the evidence that this was so.
[22]	Benn accepted Mr Mbuzi’s proposition put to him in cross-examination that “at the time you are insisting on looking at my licence I was vehemently and strongly opposing to your inquiry about my licence.” Benn’s evidence was that much later in their conversation Mr Mbuzi revealed that he did not have his driver licence with him but Benn explained that was not why he was arrested. The reason for the arrest, according to Benn, was the level of aggression shown by Mr Mbuzi which Benn described as completely inappropriate for the occasion, being 9:30am on Christmas Eve with adults and children present. His evidence had been that most of the talking was done by Mr Mbuzi before Benn asked “are you finished” so that Benn could be permitted to interrupt Mr Mbuzi’s tirade to explain that all he wanted was to see the driver licence. 
The infringement notices
[23]	Each of the infringement notices given to Mr Mbuzi on 24 December 2011 required him to pay $300 as a penalty.  One infringement notice, in the place in the notice provided for ‘Identifying particulars of the offence’, had inserted ‘obstruct police officer in the performance officer’s duties’.  In the other infringement notice in the same place the particulars of the offence were ‘Commit public nuisance – disorderly behaviour’.  In each infringement notice, in another place, there was printed on the form a square which one could tick under the words ‘Act or Regulation breached’ and the square was beside the words ‘Transport Operations (Road Use Management) Act 1995’.  In each infringement notice that box had been ticked.  Copies of the infringement notices appear in Mr Mbuzi’s affidavit.  Accordingly, each infringement notice created an impression that the offences identified in the infringement notices were offences against the Transport Operations (Road Use Management) Act 1995.  The offence of public nuisance is an offence against the Summary Offences Act 2005.  To obstruct a police officer in the performance of the officer’s duties is an offence against s 790 of the Police Powers and Responsibilities Act.  If the infringement notices had been more correctly filled out, they should not have been ticked in the box next to the words ‘Transport Operations (Road Use Management) Act 1995’.  Instead, in an adjacent rectangle it would have been more correct to have included reference, in one case, to the Police Powers and Responsibilities Act 2000 and in the other case to the Summary Offences Act 2005.
[24]	The infringement notices given to Mr Mbuzi carried identification numbers A 6068637 3 and A 6068638 4.
The evidence of Mr Duffield at trial
[25]	The oral evidence given by Mr Duffield was to the effect that: 
•	he had been, with his two sons aged six and eight, to the butcher shop at the shopping centre on 24 December 2011 and was walking 50m from the shop to where his car was parked when he noticed Mr Mbuzi arguing with two police officers whose car was parked 5 to 10 metres from Mr Duffield’s car; 
•	that the closer Mr Duffield and his sons got to his vehicle the louder was the noise from the argument; 
•	that his boys stopped walking to stare; 
•	that he urged the boys to get going and to keep moving towards their car; 
•	that the police were quite calm and were being straightforward in the way they were asking questions but that Mr Mbuzi was using very aggressive body language, a lot of finger pointing and was aggressively in the personal space of the police officers;
•	that Mr Mbuzi said “You are an idiot.  You are a stupid man.  I am going to get you for this and I want your name,” and that one of the police officers responded, “Sir, can you please keep your voice down.  There are children in the vicinity”;  
•	that a police officer said, “Okay, sir.  That’s enough.  You are now under arrest”; 
•	that it seemed that Mr Mbuzi was not listening to what the police were saying; 
•	that Mr Mbuzi was fixated on his own argument, saying the same things over and over and over; that to Mr Duffield it seemed unacceptable behaviour and not how you would talk to another person in public and certainly not how you would talk to a police officer; 
•	that after one of the police officers had said ‘you’re now under arrest’ they then attempted to put handcuffs on Mr Mbuzi and to place him on the bonnet of the car, but he saw that Mr Mbuzi was resisting to a degree to having his hands cuffed and that he saw Mr Mbuzi display a very aggressive stature and saw that the police had to forcibly take hold of his arms to place the cuffs on; 
•	that the police had been talking but Mr Mbuzi had been yelling; 
•	that Mr Duffield had seen that Mr Mbuzi was highly aggravated right from the beginning of the conversation but even more so by the end; 
•	that Constable Benn had subsequently telephoned Mr Duffield and had asked if he would be willing to be make a statement.
The evidence of Mr Mbuzi at trial
[26]	The evidence of Mr Mbuzi was:
•	he was driving his daughter’s car to the Brendale shops to buy milk and a newspaper;
•	that the car was white;
•	that after he parked it, he was walking towards the shop and heard a voice say, “Hey, come here,” to which he turned and saw two uniformed police officers;
•	that one started by saying, “Can we have your driver licence”;
•	that on a number of occasions in the past Mr Mbuzi had been asked for a driver licence in circumstances which made him feel that he was being picked on by police;
•	that because of his prior experiences he simply said, “No”;
•	that he believed that the police had no right to ask him to produce his licence because he had read the Police Powers and Responsibilities Act and the Transport Operations Act (sic);
•	that he was upset;
•	that he told the police that they were stupid, idiots and ignorant;
•	that he was not in a position to produce his licence because he was not carrying it;
•	that he was handcuffed, and in the course of the handcuffing he was protesting;
•	that he was protesting because he believed there was utterly no reason to be arrested because he believed that police were entitled to arrest a person only if police had a warrant or if police were investigating an indictable offence;
•	that he was taken to a police station and handed infringement notices;
•	that he felt pain in his hands and his knees when he was arrested, and that he was banged against the bonnet of his daughter’s car;
•	that he indicated on part of each of the infringement notices that he wanted to contest the offences in court;
•	that he believed that the matter had come to court on some date that he had not been notified of and believed that it had been dealt with by the court, and that he believed that a consequence of that was that he was discharged;
•	that he was the holder of an open driver licence;
•	that he believed legally there is no requirement to produce a licence to police if they require it;
•	that he did say to the police when they approached him at the shopping centre, “Don’t be stupid, I don’t care who you are”;
•	that the disc containing the recording of the conversation between them had been doctored, although he accepted that he did not suggest this to Constable Benn in evidence;
•	he accepted that Constable Benn had said to him, “There are children watching,” and that he had said, “Don’t tell me what to do, you are an idiot,” and explained that he said that because there were no children watching;
•	that his arms had been twisted by the two police officers who were bigger than him;
•	that at no time did the police try to stop him on the road while driving.
[27]	To the suggestion in cross-examination of Mr Mbuzi that the police had performed a U-turn and put their lights on, Mr Mbuzi asked the question, “How could I have seen that? How? How?” I note that Mr Mbuzi did not deny seeing the police execute a U-turn and did not deny seeing their lights on. One obvious answer to Mr Mbuzi’s question was that if the police car had been visible by looking in the mirrors of his daughter’s car he could have seen it turn and seen its lights by looking in the mirrors. However, there is no direct evidence that Mr Mbuzi was aware of the police before Benn called to him after each had exited their vehicles in the car park.
The recorded conversation of 24 December 2011
[28]	There is no transcript, in evidence, of the recorded conversation which is exhibit 2.  Mr Mbuzi and Ms Mant for the respondent each preferred that I listen to the recording after the matter was adjourned.  I did. I was unable to determine whether the recording picked up the entirety of the words spoken. Mr Duffield recalled hearing the words ‘you are under arrest’. They do not appear in the recording. Mr Duffield was not challenged about that aspect of his evidence. 
[29]	To my ears, the first part of the recorded conversation between the police and Mr Mbuzi, audible from playing exhibit 2 and until Mr Mbuzi was placed in the police car was generally to the following effect:
BENN: Come here sir please, I need to talk to you
Mbuzi: Don’t be stupid I don’t care who you are.
BENN: Sir
Mbuzi: Don’t be stupid, I don’t care who you are, do you understand that?
BENN: Sir you’ve been pulled over
Mbuzi: Who told you that I’ve been?
BENN: Are you finished?
Mbuzi: No, why have you pulled me over?
BENN: Because the driver of the vehicle, the registered owner of the vehicle comes up as a learner driver
Mbuzi: You’re very stupid….don’t touch me…
BENN: Don’t walk away from me
Mbuzi: I don’t care who you are
BENN: Don’t walk away from me when I’m talking
Mbuzi: You must be stupid person. Let me get your details
BENN: Produce your driver’s licence for me sir
Mbuzi: Why should I produce my driver’s licence
BENN: Cause.. look because I require you to provide your driver’s licence, sir
Mbuzi: Let me tell you I don’t care who you are
BENN: Sir there are children watching, lower your voice sir there’s children watching
Mbuzi: Don’t tell me what to do, you’re an idiot, I don’t care…
Sergeant: produce your driver’s licence
Mbuzi: I want to get your details
BENN : produce your driver’s licence sir… sir
Mbuzi: You have to tell me why I produce my driver’s licence
BENN: I require you to produce your driver’s licence
Mbuzi: You are a bunch of idiots
BENN: Sir you are required to provide your driver’s licence. Going to give you one more opportunity to provide your driver’s licence
Mbuzi: Well, I don’t carry my driver’s licence
BENN: You don’t carry your driver’s licence?
Mbuzi: Can I see, I want to get your details sir … I want to get your details first, if you have …
BENN: Stop raising your voice at me, thank you very much
Mbuzi: Can you give me your details, stupid man you are
Sergeant: produce your driver’s licence
Mbuzi: No. Can you give me your details and I’ll get your details
Sergeant: Alright then you can produce your driver’s licence?
Mbuzi: Can you give me your details sir
BENN: When you produce your driver’s licence sir.
Mbuzi: I’m not carrying my driver’s licence
BENN: You’re not showing me your driver’s licence?
Mbuzi: I said I’m not carrying it, you must be an idiot if you don’t understand English
Sergeant: produce your driver’s licence
Mbuzi: I told you I’m not carrying my driver’s licence now
Sergeant : Are you going to produce it?
Mbuzi: I don’t have it, you idiot, you can’t produce what I don’t have.
Mbuzi: Don’t touch me
Mbuzi: Why you doing that, why? Why? Why you doing that? You must be an idiot you’ll pay for this
Sergeant: Ok
Mbuzi: You must be bloody idiots.
BENN: Sir, 3, 4 times we’ve asked you to produce your
Mbuzi: I told you I’m not carrying it. You bloody idiots. Don’t you understand that?
BENN: And the whole time we’ve been talking to you sir, you weren’t going to produce it
Mbuzi: Yeah I told you I’m not carrying it. I’m not going to produce it. I’m not carrying it. You idiot.
Sergeant: Hang on dud
Mbuzi: You’re bloody dud as well. Is he an idiot as well?
Mbuzi: No don’t push me ok… why are you pushing me?
Sergeant: In the car please, there you go

Mr Mbuzi’s affidavit evidence
[30]	Mr Mbuzi’s affidavit, Document 8 in this proceeding, was sworn on 20 May 2015. Mr Mbuzi does not swear to any fact relevant to this appeal. The affidavit does exhibit 12 photocopy documents annexed to two sheets in which some unsworn things are alleged about the 12 documents and the effect of some of them. No point was taken that the annexed documents were photocopies. With the exception of a photograph at Document 1, the other 11 documents appear to be accurate copies of documents which I accept as prima facie evidence of their contents. Ms Mant accepted that the photograph at Document 1 was tendered by the police during the trial. I take that to mean that it is a copy of a photograph tendered at trial.  The photograph is of a computer screen.  I infer that it was tendered at trial to demonstrate information appearing on the screen about the registered owner of the vehicle.  It shows the owner’s name “Msilizha Mbuzi”, “DOB: 25/08/93 … Sex: Female … Hair: Black …”.  Mr Mbuzi presented in court before me as a man with a shaven head.  I assume, in his favour, that he appeared that way on 24 December 2011. It follows that Mr Mbuzi could not reasonably have been mistaken for an 18 year old female during conversations between police and Mr Mbuzi in the Brendale shopping centre car park in the daylight. 
[31]	It is appropriate for me to consider the findings of the magistrate on issues of fact and to bear in mind any advantage which her Honour had in seeing and hearing the witnesses give evidence. 
Findings of the Magistrate
[32]	I note that her Honour found: 
•	as soon as Mr Mbuzi realised that police officers wished to speak to him, he commenced berating them; they could not get a word in; 
•	Benn was trying to explain why the police wished to speak with Mr Mbuzi; 
•	the response by the police was quite mild in the circumstances; 
•	to the mild response by the police Mr Mbuzi, angry and upset, gave more abuse; 
•	Mr Duffield’s evidence and Mr Benn’s evidence were accepted; 
•	the police were not given an opportunity by Mr Mbuzi to carry out the check they wanted to carry out; 
•	the police computer had raised the query as to whether the driver was a learner driving in compliance with a permit; 
•	there was a reasonable basis for the police to wish to intercept the vehicle; 
•	Mr Benn was entitled to ask Mr Mbuzi to produce the driver’s licence; (I note that this is a finding of mixed fact and of law. For the reasons I set out below, I accept the finding of fact and the finding of law);
•	it was not until well into the conversation recorded that Mr Mbuzi said he did not have a driver’s licence with him; 
•	Mr Mbuzi was loud and aggressive; 
•	as Mr Duffield and his boys approached, while walking to their car, they could see and hear the scene being created by Mr Mbuzi and were probably amazed that the man was being aggressive towards the police, in their face, finger pointing and shouting insulting words; they heard Mr Mbuzi say ‘you will pay for this’;
•	Mr Duffield found Mr Mbuzi’s behaviour was unacceptable and that it was not how you would talk to another person and that he said to his boys ‘we don’t need to see this’ and moved them away; 
•	because Mr Mbuzi was carrying on as he did towards the police, loudly and aggressively, the passage by Mr Duffield and his boys from the shops to the car was interfered with and was likely to be interfered with and they did not have a peaceful passage; 
•	Mr Mbuzi’s behaviour was such as to cause another person to leave a public place and that is what he caused Mr Duffield to want to do; (I note Mr Duffield was intending to leave the car park, irrespective of Mr Mbuzi’s behaviour, but I accept that her Honour’s finding implied that Mr Mbuzi’s behaviour made Mr Duffield wish to move his boys to his car once the boys had stopped to stare and that Mr Mbuzi’s conduct was so unsettling that it was an independent basis for making Mr Duffield wish to take his sons away and to depart the place.)
•	Mr Mbuzi’s behaviour, when it could not be subdued, led police to attempt to arrest him; 
•	her Honour accepted the evidence of Mr Duffield and Benn that Mr Mbuzi resisted being handcuffed, that he struggled and that he significantly interfered with the arrest process. 
[33]	Those findings of fact are partly based upon her Honour’s assessment of the witnesses Duffield and Benn. Her acceptance of their evidence is a matter I give weight to. 
[34]	I accept the evidence of Benn and Duffield as I have recorded it. I accept her Honour’s findings of fact set out above subject to any qualifications I have expressly set out. I accept that the recording was accurate save for the failure to record the words spoken by Sergeant Holmes ‘you are under arrest’. I reject the evidence of Mr Mbuzi that the recording was doctored. I do not accept a finding of her Honour that police activated a siren.
Analysis
[35]	Mr Mbuzi was convicted of the offences of ‘commit public nuisance’ and ‘assault or obstruct police officer in performance of duties’. On appeal, Mr Mbuzi did not include a ground of appeal that there was insufficient evidence of the elements of either offence. Mr Mbuzi’s written outline did not argue that there was insufficient evidence of the elements of either offence. Mr Mbuzi, by his oral submissions to me did not argue that there was insufficient evidence of the elements of each offence. Rather, Mr Mbuzi argued that his arrest on 24 December 2011 was unlawful, that it amounted to an unlawful assault and that his subsequent detention was unlawful. It is uncontested that after his arrest Mr Mbuzi was detained in a police vehicle in transit to a police station and was detained until he was released from the police station with two infringement notices. He argued that if the arrest was lawful then the magistrate ought not to have proceeded while a judicial review proceeding was pending in the Supreme Court. He argued that the magistrate ought not to have proceeded on another basis, namely that the matter was at an end because Mr Mbuzi had paid the fines specified in the infringement notices. He also argued that the magistrate should have declined to hear the matter
[36]	Though Mr Mbuzi primarily concentrated on whether his arrest was unlawful, and on whether he could be tried, his arguments sometimes appeared to challenge whether the elements of the offences were established. It seems appropriate on this rehearing to consider also, whether the prosecution proved the elements of the offences. 
[37]	On this rehearing the Commissioner bears the onus of proof of the guilt of Mr Mbuzi.  There is no burden on Mr Mbuzi to establish any fact, let alone his innocence.  He is presumed to be innocent and may be convicted only if the Commissioner establishes that he is guilty of the offences charged.  For the Commissioner to discharge the burden of proving the guilt of Mr Mbuzi in respect of either charge, the Commissioner is required to prove beyond reasonable doubt that Mr Mbuzi is guilty of that charge.  This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I must also consider Mr Mbuzi’s other arguments about an unlawful arrest and the impropriety of the magistrate’s proceeding to determine the matter. I will loosely call these other arguments Mr Mbuzi’s defences. If I am left with a reasonable doubt about guilt, my duty is to acquit.  The fact that Mr Mbuzi gave evidence below and put fresh evidence before me on appeal does not mean that he assumed a responsibility of proving his innocence.  His evidence is added to the evidence called for the Commissioner and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the Commissioner has proved the case before Mr Mbuzi may be convicted.  Mr Mbuzi was charged with two separate offences.  I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the Commissioner has proved its essential elements.
[38]	A practical approach in this proceeding is to consider first whether the Commissioner has satisfied the onus of proof of the elements of each offence. If the Commissioner has satisfied the onus of proof of the elements of each offence, it is necessary to consider Mr Mbuzi’s defences.
Are the elements of Public Nuisance established beyond reasonable doubt?
[39]	The Summary Offences Act 2005 provides at s 6, so far as is relevant: 
6 Public nuisance 
(1) A person must not commit a public nuisance offence. 
... 
(2) A person commits a public nuisance offence if-
(a) the person behaves in-
(i) a disorderly way; or
(ii) an offensive way; 
(iii) a threatening way; or
(ivI 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.
[40]	To prove the offence of commit public nuisance where, as was the case against Mr Mbuzi, the particulars were ‘disorderly’, on this appeal, the Commissioner must establish beyond reasonable doubt that Mr Mbuzi, at the relevant time before his arrest, behaved in a disorderly way and must also prove that Mr Mbuzi’s behaviour interfered with or was then likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public.  
[41]	I am satisfied that the car park at the shopping centre was a public place and that Mr Duffield and his two sons were members of the public.  
[42]	Concepts of what is disorderly, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs.
[43]	In Coleman v Power op. cit. observations on the meaning of ‘disorderly’ in the Vagrants, Gaming and Other Offences Act 1931 (Q) repealed (‘the Vagrants Act’) appear. The word ‘disorderly’ as a descriptor of ‘behaviour’ appeared in the Vagrants Act in a slightly different context. Section 7(1)(e) of the Vagrants Act made liable to a penalty persons who behaved ‘in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner’. Observations in that case are nevertheless helpful to determine the meaning of the ‘disorderly’ in section 6 of the Summary Offences Act 2005. In Coleman at [11] Gleeson CJ observed:
the removal in 1931 of the requirement concerning a breach of the peace undoubtedly gave rise to a problem of confining the operation of the legislation within reasonable bounds. The New Zealand courts faced this problem in relation to the prohibition of "disorderly" conduct. Having decided that there was no justification for reading into their 1927 Act a requirement of intended or likely breach of the peace, they had to address the issue of the kind of disorder that would justify the imposition of a criminal sanction. In Melser v Police[9], the Court of Appeal declined to give the word "disorderly" its widest meaning. North P referred to a South Australian case[10] which held that "disorderly behaviour" referred to "any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, a street or public place". He went on to say that the words "are directed to conduct which at least is likely to cause a disturbance or annoyance to others"[11]. Turner J pointed out that the disorderly behaviour, like the insulting behaviour, prohibited by the section had to be such as would tend to annoy or insult people sufficiently deeply or seriously to warrant the interference of the criminal law. It was not sufficient that the conduct be indecorous, ill-mannered, or in bad taste. The question, he said, was a matter of degree[12]. McCarthy J pointed out that the law had to take due account of the rights, and freedoms, of citizens. He said that, to be characterised as disorderly, conduct had to be "likely to cause a disturbance or to annoy others considerably"[13].
[44]	The Explanatory Notes to the Summary Offences Bill 2004 stated ‘…In determining what is a “public nuisance” offence in terms of the section, a court is not limited by but should take into account the following examples – …11. Behaving in a manner that might cause another to leave a public place.’
[45]	I infer from the observations of Gleeson CJ in Coleman that a significant feature of the context in which ‘disorderly’ appeared under the Vagrants Act was that there was no express limit on the kinds of behaviour which might be covered by the description ‘disorderly’ and that where statutes in some other jurisdictions criminalised ‘disorderly’ behaviour, courts in those jurisdictions tended to interpret ‘disorderly’ as having limited ambit.  The Vagrants Act had the potential to criminalise many kinds of conduct if ‘disorderly’ was interpreted widely. The Vagrants Act contained no limiting condition that for conduct to be criminal it must also interfere with, or be likely to interfere, with the peaceful passage through, or enjoyment of, a public place. It was reasonably arguable that ‘disorderly’ behaviour under the Vagrants Act would have been interpreted as requiring behaviour which ‘disturbs or annoys others considerably’.
[46]	The Summary Offences Act 2005 is distinguishable from the Vagrants Act because section 6 of the Summary Offences Act 2005 includes the express further requirement that behaviour ‘interfere with, or be likely to interfere, with the peaceful passage through, or enjoyment of, a public place’. It may be that a wider meaning of ‘disorderly’ is intended for section 6. It may be that under the Summary Offences Act 2005 it is not necessary to narrow the interpretation of ‘disorderly’ by requiring that the disorderly behaviour must be shown to ‘disturb or annoy others considerably’. Perhaps the express further requirement was intended to clarify the degree of disturbance required from the disorderly conduct. The difference does not affect the finding in Mr Mbuzi’s case. This is because I am satisfied beyond reasonable doubt, for reasons I explain below, that Mr Mbuzi’s behaviour was such as to ‘disturb or annoy others considerably’.
[47]	I am satisfied that the police were generally maintaining calm demeanours as they asked questions of Mr Mbuzi and that he, by contrast, was using aggressive body language, a lot of finger pointing and was aggressively in the personal space of the police officers. I accept Mr Mbuzi’s evidence that he was upset and told the police that they were stupid, idiots and ignorant.  I accept the proposition put by Mr Mbuzi to Benn in cross‑examination that when the police were insisting on looking at his licence, Mr Mbuzi was vehemently and strongly opposing their inquiry.  I accept Benn’s evidence that Mr Mbuzi was immediately aggressive, loud and intimidating, that his whole demeanour was aggressive, that Mr Mbuzi’s ‘reaction was completely over the top’.  I accept that the disc accurately records that Benn urged Mr Mbuzi, ‘Sir, there are children watching, lower your voice sir, there’s children watching,’ to which Mr Mbuzi replied, ‘Don’t tell me what to do, you’re an idiot, I don’t care,’ and that a short time later it accurately records Benn urging Mr Mbuzi, ‘Stop raising your voice at me, thank you very much.’  I am satisfied that Mr Mbuzi’s voice was raised and loud. I find that Mr Duffield and his children were watching and listening when Benn urged Mr Mbuzi to lower his voice. 
[48]	I am satisfied that the noise and spectacle created by Mr Mbuzi’s raised voice, choice of aggressive language and aggressive body language at that time and place was sustained. 
[49]	I accept as honest and reasonable Mr Duffield’s evidence characterising Mr Mbuzi’s behaviour as unacceptable and not appropriate for talking to another person in public and certainly not appropriate for talking to a police officer. I infer that Mr Duffield’s characterisation took account of the contrast with the demeanour of the police. It is consistent with the evidence of Benn that the reason for the arrest was the level of aggression shown by Mr Mbuzi which Benn described as completely inappropriate for the occasion. I accept Benn’s evidence in this regard as honest and reasonable.
[50]	Mr Duffield and Benn expressed their subjective opinions that Mr Mbuzi’s conduct was inappropriate.  I must determine, not propriety of behaviour but whether I am satisfied beyond reasonable doubt that Mr Mbuzi’s behaviour was ‘disorderly’. I must determine that objectively. 
[51]	I am satisfied beyond reasonable doubt that the element of the offence that the behaviour was disorderly is established.
[52]	Mr Mbuzi submitted on appeal that his insults to police were not a proper basis for a criminal charge. He had two bases for the submission. One was that he was justified in insulting the police. The other was by reference to High Court authority. These arguments may be intended to attack the premise that the elements of the offence are established.
[53]	Mr Mbuzi submitted that on the occasion of his arrest the police constantly asked him to show his licence and he said that he did not have it and that their persistence in continuing to ask meant that he was justified in describing them as ‘stupid’ and dumb. The submission does not accurately describe events. It is correct that the police constantly asked Mr Mbuzi to show his licence. After six requests by police for Mr Mbuzi to produce his licence and after six occasions when Mr Mbuzi called the police either ‘stupid’ or ‘idiot’ Mr Mbuzi first asserted he was not carrying a licence. 
[54]	Mr Mbuzi’s oral submission supplements the written outline where Mr Mbuzi included a submission that to call police ‘stupid’ or ‘idiots’ or ‘dumb’ as Mr Mbuzi concedes he called the police, is no basis for a criminal charge. Mr Mbuzi referred, in support, to Coleman v Power. That case concerned the Vagrants Act and the meaning of ‘insulting words’ in that statute. It did not concern the Summary Offences Act 2005 or what amounts to ‘disorderly’ behaviour or ‘public nuisance’ under the Summary Offences Act 2005. It is not an element of the offence of ‘public nuisance’ involving behaving in a ‘disorderly way’ that there be insulting words used. The Summary Offences Act 2005 does not contain any reference to ‘insults’ or ‘insulting words’. I need not consider whether the words used by Mr Mbuzi were ‘insulting words’ within the meaning of the Vagrants Act. Mr Mbuzi’s reliance on Coleman was unhelpful to him as the offence for which he was arrested and convicted arose under a different statute and its elements are different from those considered in Coleman.
[55]	Mr Mbuzi’s premise that his use of the words ‘stupid’ or ‘idiots’ or ‘dumb’ was the basis of the criminal charge is unsound. It was Mr Mbuzi’s very inappropriate level of aggression for the time and place. His use of disparaging words was one facet of his aggression.
[56]	Benn gave evidence before the magistrate that Benn took no offence at Mr Mbuzi’s words. It is not necessary for me to decide whether the use of the disparaging words ‘stupid’, ‘idiot’, ‘bunch of idiots’, ‘dumb’ or ‘dud’ was either ‘insulting’ or offended the police.
[57]	It is no element of the offence of ‘public nuisance’ involving disorderly conduct that the subject behaviour offend the person to whom it is directed. 
[58]	Further, I need not consider whether Mr Mbuzi behaved in ‘an offensive way’ within the meaning of the Summary Offences Act 2005 because that was not the type of public nuisance offence particularised at trial.
[59]	One of Mr Mbuzi’s arguments was that insults cannot be the basis of a criminal charge. If by that Mr Mbuzi meant to argue that his choice of words was irrelevant, I reject the argument. I am satisfied that the words ‘stupid’, ‘idiot’, ‘bunch of idiots’, ‘dumb’ or ‘dud’ which Mr Mbuzi used were publicly audible and aggressively expressed and that at least the words ‘idiot’ and ‘stupid’ were heard by Mr Duffield. I find that I may have regard to the words used in their context when determining whether Mr Mbuzi’s conduct was ‘public nuisance’ involving behaving in a ‘disorderly way’.  The fact that Mr Mbuzi spoke disparaging words was a part of Mr Mbuzi’s conduct and can be considered. Because the basis of the public nuisance finding of her Honour was Mr Mbuzi’s inappropriate level of aggression, I regard it as relevant for me to consider whether Mr Mbuzi’s words were audible, what they were and how they would have affected reasonable members of the public. One’s choice of words are no less a part of one’s behaviour than the noise and movement one makes. But the words used were only a part of the behaviour. The noise and spectacle created by Mr Mbuzi’s raised voice, refusal to lower his voice, choice of aggressive language and aggressive body language at that time and place was sustained, unacceptable and not appropriate behaviour for responding to police questions in public as Mr Duffield and his children approached and watched. 
[60]	Even if it is appropriate to impose, for Mr Mbuzi’s benefit, the extra requirement that the disorderly behaviour must also be ‘likely to disturb or annoy others considerably’ I am satisfied beyond reasonable doubt that Mr Mbuzi’s behaviour was. I am satisfied beyond reasonable doubt that Mr Mbuzi behaved in a disorderly way. 
[61]	I am satisfied beyond reasonable doubt that Mr Mbuzi’s behaviour towards the police interfered with and was likely to interfere with the peaceful passage of Mr Duffield and his children through the car park.
[62]	I am satisfied beyond reasonable doubt that Mr Mbuzi committed the elements of public nuisance.
Was the arrest on 24 December 2011 unlawful, as Mr Mbuzi argues?
[63]	Neither the notice of appeal nor Mr Mbuzi’s written submissions raised the argument that the arrest on 24 December 2011 was unlawful. However, in his oral submissions, Mr Mbuzi argued that his arrest had been unlawful. There was no express application to amend his grounds of appeal. The respondent was not specifically asked to consider whether to consent to this additional ground of appeal that the arrest was unlawful. I will deal with Mr Mbuzi’s arguments on this ground notwithstanding the hypothetical prejudice to the respondent.
[64]	Mr Mbuzi was arrested for the offence of commit public nuisance. But Mr Mbuzi’s first argument that his arrest was unlawful relied on the events which occurred well before the arrest.
[65]	Mr Mbuzi submitted:
there was no lawful basis.  There was no reasonable basis for the police to be asking for my licence, and, therefore, I was lawfully and rightly within my right (1) to want to be left alone, but (2), your Honour, I didn’t have the licence with me.  And that’s what your Honour’s going to hear on tape.  So when I say it, I didn’t have a licence.  Now, because, as your Honour, if you listen to that, to the tape later on – you are going to hear the police confidently saying, “Show us your licence,” and me saying, “I don’t – I’m not carrying my licence,” and then, in the course of saying that, I told them they were being stupid;  they were being dumb, and, your Honour, no person – no person, under those circumstances, would not have looked at the police as being stupid, as being dumb, because for somebody to be talking to an over 50 years old man within less than a metre of each other and to say because they thought I was the person – the person driving this car was a learner and therefore needed to produce a licence – certainly, your Honour, my description of them as being dumb, as being stupid, was justified, and my resistance [indistinct] was justified, and therefore, my submission, your Honour, is that there was no basis for my arrest, and I’m saying this, your Honour, to say your Honour ought to find that my arrest was unlawful
[66]	During lengthy oral submissions Mr Mbuzi seemed to me to raise four different arguments related to his basic premise that the arrest was unlawful. 
[67]	Firstly, Mr Mbuzi argued that the police could not lawfully require him to pull over. Secondly he argued that the police had no lawful basis to question him or to ask him to produce his driver licence because they knew he was not a learner driver. Thirdly, he argued that police could not arrest him for failure to produce a licence. Fourthly, he argued that police could not arrest a person for justifiably describing them as stupid. 
[68]	I will deal with the first argument that police could not lawfully require him to pull over. 
[69]	In Queensland, police officers may require a vehicle to stop for some prescribed purposes. Section 60 of the Police Powers and Responsibilities Act 2000 provides, so far as is relevant: 
(1) A police officer may require the person in control of a vehicle… to stop the vehicle for a prescribed purpose… 
(2) …
(3) the prescribed purposes are as follows- 
 		(a) for enforcing a transport Act…; 
(b) to check whether… the person is complying, with a transport Act…
[70]	It follows that the conduct of the police officers in following the car was consistent with performance of their duty if the police officers’ intended to require the driver of the vehicle to stop to check whether the driver was complying with a transport Act, either by driving with a learner’s permit and a supervising person or alternatively driving with a driver licence. That is what Benn intended. I infer that that is also what the sergeant intended.
[71]	I give Mr Mbuzi the benefit of my doubt on a factual matter. I am not satisfied that Mr Mbuzi was aware that police in a vehicle some unspecified distance behind him on Kremzow Road were deliberately following him, or aware that police had activated the car’s emergency lights or aware that they required him to stop the car he was driving. There is not sufficient evidence to satisfy me that Mr Mbuzi was aware of the police before Benn called to him in the car park.
[72]	And so, I conclude that Mr Mbuzi parked in the car park unaware that police desired that he stop the vehicle. This was not a case of police requiring Mr Mbuzi to stop. Mr Mbuzi had stopped before being required to. 
[73]	Because police did not require Mr Mbuzi to stop the vehicle it is not necessary for me to consider further the requirements of s 60 of the Police Powers and Responsibilities Act 2000 to determine whether it would have been lawful for the police to require Mr Mbuzi to stop on 24 December 2011.
[74]	I will deal with the second argument that the police had no lawful basis to question Mr Mbuzi or to ask him to produce his driver licence because they knew he was not the learner driver registered as the owner.
[75]	Mr Mbuzi submitted: the registered owner of the vehicle he had been driving was his daughter Msilizha (I find that she was); that she was a teenager (I find that she then was); that Mr Mbuzi was obviously not a teenage female (I find that fact would have been obvious to the police shortly after Mr Mbuzi alighted from the vehicle he had been driving); that the registered owner was a learner driver (I find that she then was).
[76]	Mr Mbuzi also submitted, in effect: that the police officers who arrested him then knew he was not the person who was the registered owner shown to be the holder of a learner permit; with that knowledge, that the police had no lawful basis to ask him to produce his driver licence; that the police would have known all of the information in the photograph annexed to his affidavit. 
[77]	In Queensland, a police officer may require a person to produce the person’s driver licence for inspection in circumstances set out in s 58 of the Police Powers and Responsibilities Act 2000. That section provides, so far as is relevant: 
(1) This section applies if a police officer-
…
(c) is making inquiries or investigations for establishing whether or not a person has committed an offence against the Road Use Management Act… 
(2) The police officer may require the person to produce the person’s driver licence for inspection.
(3) A person who holds an open driver licence issued under the
Road Use Management Act but is unable to comply with the
requirement immediately may comply with the requirement
by producing the licence to the officer in charge of a
nominated police establishment or police station within 48
hours after the requirement is made.
[78]	It was not contested by Mr Mbuzi that the holder of a learner licence may not drive while unsupervised.
[79]	By schedule 6 of the Police Powers and Responsibilities Act 2000 the ‘Road Use Management Act’ is defined to mean the Transport Operations (Road Use Management) Act 1995. It follows that where s 58(1)(c) of the Police Powers and Responsibilities Act refers to ‘an offence against the Road Use Management Act’ it means  ‘an offence against the Transport Operations (Road Use Management) Act 1995’. Section 7(1) of the Acts Interpretation Act 1954 provides:
In an Act, a reference (either generally or specifically) to a
law (including the Act), or a provision of a law (including the Act), includes a reference to the statutory instruments made or in force under the law or provision.
[80]	The Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 is a statutory instrument made under the Transport Operations (Road Use Management) Act 1995.  It follows that s 58 of the Police Powers and Responsibilities Act 2000 empowers a police officer to require a person to produce the person’s driver licence for inspection if the police officer is making inquiries or investigations for establishing whether or not a person has committed an offence against the Transport Operations (Road Use Management – Driver Licensing) Regulation 2010.  Section 5(11) of that Regulation creates an offence for the holder of a learner licence who is authorised to learn to drive a vehicle under that section to drive without being under the direction of a person sitting next to the driver and holding an O-type licence for the class of vehicle that the learner is driving.  
[81]	It follows that it would have been lawful for either of the police officers to require, in the shopping centre car park, Mr Mbuzi to produce his driver licence for inspection if the officer was make inquiries for establishing whether or not Mr Mbuzi had committed an offence against the Transport Operations (Road Use Management) Act 1995. The only offence which Benn gave evidence of investigating was of driving unsupervised while the holder of only a learner permit. 
[82]	Benn had been the driver of the police car. There was no evidence that the computer in the police car had displayed the information appearing in a photograph shown in Mr Mbuzi’s affidavit which described the learner as a female born in 1993. I assume in Mr Mbuzi’s favour that the screen displayed the information. There is no evidence that the sergeant, or Benn, or either of them had seen or appreciated the age or gender of the learner driver shown to be the registered owner of the vehicle Mr Mbuzi was driving. If a computer screen in the police car had displayed the gender and age of the registered owner of the vehicle Mr Mbuzi was driving, it does not necessarily follow that the police officers were aware of the age or gender of the registered owner. It is not obvious what other information would have appeared on the screen when the sergeant regarded it. If the sergeant was interested in the registered owner’s licence status, it is not obvious that he was also interested in the registered owner’s age and gender. It is not obvious that Benn would have seen the screen of the computer that Sergeant Holmes had regard to. Benn was the driver and ought not to have looked at the screen while driving. Benn ought to have left the screen search of the registered owner’s licence status to his passenger, Sergeant Holmes. 
[83]	I accept the evidence of Benn that the sergeant had told Benn that the owner of the vehicle was a learner driver but did not say the owner was a female or say anything else about the owner; that Benn’s purpose in speaking to the driver was to do a driver’s licence check to exclude the possibility that the unsupervised driver was the holder of a learner permit. I find that Benn’s purpose in asking Mr Mbuzi to produce his driver licence was to do a driver licence check to exclude the possibility that Mr Mbuzi as an unsupervised driver was the holder of a learner permit so as to establish whether or not an offence had been committed.
[84]	I find that police were acting lawfully in trying to question Mr Mbuzi in the car park in requesting that he produce his driver licence. 
[85]	Thirdly, Mr Mbuzi argued that police could not arrest him for failure to produce a licence.
[86]	This argument about unlawful arrest is based on the factual premise that he was arrested for failing to produce his driver licence. That factual premise is not supported by evidence. 
[87]	Mr Mbuzi was ostensibly arrested for public nuisance. Evidence was given at trial of his behaviour, prior to and at the time of his arrest. It was evidence of his behaving in a disorderly way and so that his behaviour interfered with or was likely to interfere with the peaceful passage through, or enjoyment of, a public place by a member of the public. Was the arrest a mere ruse to disguise the truth, namely that he was arrested for not producing a licence?  
[88]	There came a stage late in the episode between the police and Mr Mbuzi in the car park before his arrest when Mr Mbuzi eventually made assertions which were rationally responsive to the police requests to see his licence. Even then, Mr Mbuzi’s conduct continued to be inappropriately loud and aggressive. After six orderly requests by police officers to see his licence, and another request that he lower his voice, came the passage I extract below when Mr Mbuzi asserted that he did not carry a driver’s licence. I extract the portion of the recording which contains the most rationally responsive of Mr Mbuzi’s assertions:
Mbuzi: Well, I don’t carry my driver’s licence
BENN: You don’t carry your driver’s licence?
Mbuzi: Can I see, I want to get your details sir … I want to get your details first, if you have …
BENN: Stop raising your voice at me, thank you very much
Mbuzi: Can you give me your details, stupid man you are
Sergeant: produce your driver’s licence
Mbuzi: No. Can you give me your details and I’ll get your details
Sergeant: Alright then you can produce your driver’s licence?
Mbuzi: Can you give me your details sir
BENN: When you produce your driver’s licence sir.
Mbuzi: I’m not carrying my driver’s licence
BENN: You’re not showing me your driver’s licence?
Mbuzi: I said I’m not carrying it, you must be an idiot if you don’t understand English
Sergeant: produce your driver’s licence
Mbuzi: I told you I’m not carrying my driver’s licence now
Sergeant : Are you going to produce it?
Mbuzi: I don’t have it, you idiot, you can’t produce what I don’t have.
[89]	Benn’s evidence was that Mr Mbuzi was arrested for public nuisance.  I accept Benn’s evidence as to the basis for the arrest. I have found that Mr Mbuzi’s behaviour towards the police was disorderly and it interfered with and was likely to interfere with the peaceful passage of Mr Duffield and his children through the car park.
[90]	One possible construction of the evidence favourable to Mr Mbuzi is that Mr Mbuzi believed on 24 December 2011 that the police had no power to require him to produce his driver licence. Even if that factual hypothesis is correct, Mr Mbuzi’s ignorance of the law permitting police to require him to produce his driver licence is not a defence to a charge of public nuisance.
[91]	The fourth argument that the arrest was unlawful was that police could not arrest a person for justifiably describing them as stupid. 
[92]	The premise of the fourth argument is that the arrest was for the use of some disparaging words. That premise is incorrect. I reject the implication in the argument that the arrest was merely because Mr Mbuzi included some disparaging words to police.
[93]	I reject the submission that the arrest was unlawful. 
[94]	If it were possible, as a matter of law, to argue that there is a defence to a charge of public nuisance if the conduct constituting public nuisance occurred to prevent an unlawful arrest, Mr Mbuzi did not argue it and the facts of this case do not provide a foundation for the argument. Mr Mbuzi was not committing public nuisance to avoid unlawful arrest. He was arrested because he was committing public nuisance. 
Obstruct Police Officer
[95]	Benn’s relevant evidence was that when Sergeant Holmes moved forward to place Mr Mbuzi under arrest, Mr Mbuzi struggled physically to prevent the handcuffs being put on while telling the police that they were going to pay for it. Benn said Mr Mbuzi was upset and physically quite strong and that Mr Mbuzi made it harder to effect the arrest. Mr Duffield’s relevant evidence was that after one of the police officers had said ‘you’re now under arrest’ they then attempted to put handcuffs on Mr Mbuzi and to place him on the bonnet of the car, but Mr Duffield saw that Mr Mbuzi was resisting to a degree to having his hands cuffed and saw a very aggressive stature displayed by Mr Mbuzi and that the police had to forcibly take hold of his arms to place the cuffs on. Mr Mbuzi’s evidence was consistent in that he gave evidence that in the course of the handcuffing he was protesting.
[96]	Mr Mbuzi argued before me that, his resistance was justified. He did not dispute that he resisted.
[97]	I am satisfied that when Sergeant Holmes was performing the function of arresting Mr Mbuzi, Mr Mbuzi obstructed Sergeant Holmes. I am satisfied that in performing the function of arresting Mr Mbuzi, Sergeant Holmes was performing his duty as a police officer.
[98]	The Police Powers and Responsibilities Act 2000, at s 790, provides, so far as is relevant:
790 	Offence to assault or obstruct police officer 
(1) 	A person must not assault or obstruct a police officer in the performance of the officer's duties. 
…
(3) 	In this section— 
	…
	obstruct includes hinder, resist and attempt to obstruct.
[99]	To establish this offence the commissioner must prove beyond reasonable doubt firstly, that a police officer was performing the officer’s duties and secondly, while the officer was performing the officer’s duties Mr Mbuzi obstructed the officer.
[100]	I am satisfied of those matters. I am satisfied beyond reasonable doubt that Mr Mbuzi committed the offence of obstruct arrest. 
Court hearing 5 November 2012 and ‘double jeopardy’
[101]	An issue of fact arises in this appeal concerning events on 5 November 2012 at the Magistrates Court at Pine Rivers. It arises because Mr Mbuzi submits that he should not have been tried on 9 October 2014 because he had been dealt with for the same offences, in his absence, on 5 November 2012. He submits that a trial on 9 October 2014 meant ‘double jeopardy’ as it was a trial in respect of offences dealt with on 5 November 2012.  
[102]	What happened on 5 November 2012 in the Magistrates Court at Pine Rivers?
[103]	The further evidence placed before me by Mr Mbuzi in his affidavit filed 20 May 2015 included a photocopy of a verdict and judgment record of the Magistrates Court at Pine Rivers. It is the document marked ‘5’ and annexed to the affidavit. That record shows that on 5 November 2012, in respect of the charge ‘obstruct police officer in performance of duties’ and in respect of the charge ‘commit public nuisance’, in each case for offences alleged to have occurred on 24 December 2011, no plea was entered. It also shows as the ‘Judgment or Order of the Court’: 
…
NO EVIDENCE TO OFFER – Conviction not applicable 
NO EVIDENCE TO OFFER ON BOTH CHARGES. 
Under a heading ‘DETAILS OF TRIAL, SENTENCE, OR OTHER DEALING BY THE COURT’ in a column headed ‘verdict/result’, for each charge there appear the words ‘EX PARTE’. Mr Mbuzi was not present at the Magistrates Court on 5 November 2012. Mr Mbuzi, in his ‘Appellant’s outline of submissions and authorities’ in the section entitled ‘Background’ asserted: 
9. The infringement tickets issued against the applicant have been dealt with numerously, including on 5 November 2012 when the matter first went before the Pine Rivers Magistrates Court and a judgment was entered after the Police offered no evidence on both charges. 
In the section headed ‘Submissions’, Mr Mbuzi submitted: 
iii. Double jeopardy: the facts on record reveal there is more than “double” jeopardy as the effect of the prosecution deciding “to offer no evidence on both charges” is that the applicant was discharged on 5 November 2011. 
[104]	In summary, Mr Mbuzi’s assertion is that ‘a judgment was entered’ and his submission is that ‘the applicant was discharged’ and his implication is that a defence of ‘double jeopardy’ arose. Nothing in the photocopy verdict and judgment record expressly records that Mr Mbuzi was ‘discharged’ or that ‘judgment was entered’.
[105]	A person who has been either acquitted or convicted of an offence in Queensland is generally not liable to be tried again in Queensland in respect of the same offence. The defence arises if there has been an acquittal or a conviction. It does not arise if there has been neither a conviction nor an acquittal. There would ordinarily be neither a conviction nor acquittal if the prosecution elected not to proceed.
[106]	Mr Mbuzi’s submission that the events of 5 November 2012 are relevant to ‘double jeopardy’ may be meant to imply a submission that he was acquitted by the court on that day. If he had been acquitted on 5 November 2012, there would be some basis for a submission of ‘double jeopardy’. 
[107]	Nothing in the photocopy verdict and judgment record expressly suggests that Mr Mbuzi was ‘acquitted’ or ‘convicted’. Nor does the record imply that he was. 
[108]	In Mbuzi v Commissioner of Queensland Police Service [2015] QSC 30 between the same parties as are the parties in this appeal, Justice Mullins considered an application by Mr Mbuzi for statutory orders of review. In her Honour’s reasons, her Honour made findings relating to the history of events concerning the charges arising from the alleged events of 24 December 2011. Mullins J found at [15], so far as is relevant: 
[15] Sergeant Holmes… took out a complaint and summons in respect of each charge with a return date before the Pine Rivers Magistrates Court on 5 November 2012. Again, Sergeant Holmes was unsuccessful in serving Mr Mbuzi personally with the summons’. On 5 October 2012 Sergeant Holmes posted the summons’ to Mr Mbuzi at the home address by registered post. The envelopes were returned to Sergeant Holmes as undelivered on the basis there was no post box at the address. Sergeant Holmes formed the view that it would be inappropriate to continue with the summons’ when Mr Mbuzi did not have notice of the return date and withdrew the summons’ by offering no evidence on the return date of 5 November 2012 in the Pine Rivers Magistrates Court. That is why there is a verdict and judgment record issued by the Pine Rivers Magistrates Court for the two charges dated 5 November 2012 that is endorsed ‘no evidence to offer on both charges’. (That did not, however, preclude Sergeant Holmes continuing to prosecute the charges against Mr Mbuzi by starting a fresh proceeding.)
[109]	Her Honour Justice Mullins did not find that there had been an acquittal or a conviction. On the contrary, her Honour implied that there had not been a trial or a sentence and that there had not been either an acquittal or a conviction and that the charges had not that day been prosecuted to acquittal or conviction.  Her Honour found that Sergeant Holmes was not precluded from starting a fresh proceeding to continue to prosecute the charges.
[110]	A person seeking to raise a defence of double jeopardy bears the onus of proof of the existence of the facts which give rise to the defence. Mr Mbuzi bears the onus of proof of the relevant facts, on the balance of probability. The relevant facts which Mr Mbuzi is required to establish relating to the proceeding on 5 November 2012 are that either the court acquitted or convicted him. I am not satisfied that it did either of those things. 
[111]	I accept, with respect, Mullins J’s conclusion that the failure to offer evidence on both charges on 5 November 2012 did not preclude Sergeant Holmes continuing to prosecute the charges by starting a fresh proceeding. 
[112]	I reject the submission that the events of 5 November 2012 had the consequence that Mr Mbuzi could raise a defence of double jeopardy (or autrefois acquit or autrefois convict) when he came to be tried for the two charges on 24 December 2011. 
Did double jeopardy arise by the trial on 9 October 2014 by reason of payment to SPER of the fines required by infringement notices issued on 24 December 2011?
[113]	A costs order for a sum to be assessed was made in Mr Mbuzi’s favour in Mbuzi v Murray [2012] QSC 83 on 5 April 2012. The order was made against the Registrar of State Penalties and Enforcement Registry which registry I will refer to as SPER. By his written submissions, Mr Mbuzi submitted that the magistrate (at Pine Rivers on 9 October 2014) did not have jurisdiction to hear and determine the charges against Mr Mbuzi by virtue of s 25 of the State Penalties Enforcement Act 1999.  He linked this with a double jeopardy argument, submitting that SPER fined him in March 2013.  Mr Mbuzi made oral submissions that he had paid $300 in respect of each of the infringement notices given to him on 24 December 2011. He submitted that, as a result of a costs order in his favour, the Registrar of SPER had been obliged to pay $2,000 to him.  Mr Mbuzi submitted that the Registrar had taken $600 of the money owing to Mr Mbuzi. He submitted that SPER used his money for the two infringement notices. For evidence, Mr Mbuzi relied upon a passage in the trial transcript at page 1-36 line 12 where the prosecuting sergeant said “I sought out instructions on this very issue, that it looked like he had paid these fines”. Pages 30 to 44 of the trial transcript provide context. The sergeant was not instructing that Mr Mbuzi had physically paid the $600 or that $600 was retained in satisfaction of the fines. 
[114]	By each of Mr Mbuzi’s different but related submissions and by reference to the trial transcript, I infer Mr Mbuzi’s argument to be that SPER had used an accounting exercise to reduce by $600 a $2,000 balance in favour of Mr Mbuzi on SPER’s books of account and that as a result of the accounting exercise it was the equivalent of SPER taking payment from him of two $300 fines imposed by the two infringement notices given to him on 24 December 2011. Those facts were not sworn to. There is no evidence sufficient to show the state of SPER’s account with Mr Mbuzi. 
[115]	On the unproven hypothesis that Mr Mbuzi has paid the two infringement notices, Mr Mbuzi relies upon s 25 of the State Penalties Enforcement Act 1999 which provides, so far as is relevant:
25 Alleged offender who pays cannot be prosecuted

(1) The alleged offender must not be prosecuted in a court for an infringement notice offence if the alleged offender pays the fine as required by the infringement notice, including by instalments.
[116]	There is no evidence in the appeal that Mr Mbuzi as the offender did pay or has paid the fines as required by the infringement notices. On the contrary, there is a copy affidavit of Mr Mbuzi sworn 12 November 2012 in the Magistrates Court Pine Rivers file. At paragraph 16 Mr Mbuzi swears that he has ‘not paid the amounts indicated on the infringement tickets, instead opting for a court hearing’. 
[117]	There is no evidence that books of account at SPER ever recorded that $600 was deducted from a $2,000 balance in Mr Mbuzi’s favour. If the books of account ever did record that $600 was deducted from a $2,000 balance in Mr Mbuzi’s favour there is no evidence that the deduction was not later reversed to restore in Mr Mbuzi’s favour $600 to any balance in the books of SPER. I mention that hypothesis because of things said in the Magistrates Court. The trial transcript at pages 30 to 44 reveal exchanges between the bench and Sergeant Riley and Mr Mbuzi. They include concessions, assertions, surmises and submissions from the bar table. None of the information offered from the bar table was sworn. Elements of one hypothesis emerged over several of the pages of transcript and did not provoke disagreement from Mr Mbuzi. The hypothesis was that when Mr Mbuzi received the infringement notices, he tried to elect to have both matters dealt with by a court. The process described in the notices to elect to have a matter dealt with by a court required him to complete an election form on one page of each notice and to send it to the Department of Transport and Main Roads within 28 days, that is to say, by 21 January 2013. The hypothesis continued that the Department of Transport and Main Roads, if it received Mr Mbuzi’s elections to proceed to court, made no record of receiving them within 28 days; that SPER became aware that, or acted as if, no elections to proceed to court had been received by the Department of Transport and Main Roads within 28 days; that SPER then sent notice to Mr Mbuzi that he was fined $600; that consistent with the belief that Mr Mbuzi had made no election to have matters dealt with by a court the 2 infringements were registered with SPER so that SPER would then take action to recover the two $300 amounts; that SPER then altered its account to reduce Mr Mbuzi’s balance by $600; that SPER then notified Mr Mbuzi that it imposed fines totalling $600; that Mr Mbuzi then sent two election notices dated 16/03/12 which were received by Queensland Police Service at Mango Hill on 19 March 2012 giving notice that he elects to have infringement notices A0060686373 and A0060686384 dealt with by a court of law and the two elections were subsequently stamped ‘OFFENCE PROCESSING 21 MAR 2012 QLD DEPT TRANSPORT’ (and this much of the hypothesis is supported by a copy document on the Magistrates Court file as part of material filed by Mr Mbuzi in that court. I find that the election notices refer to the two infringement notices given to Mr Mbuzi by Sergeant Holmes in spite of the fact that the election notices add ‘00’ after the letter ‘A’ and thus do not correspond exactly with the numbers printed on the two infringement notices given to Mr Mbuzi.); SPER then altered its books of account to increase the balance of Mr Mbuzi’s account with SPER by $600 and thereby SPER returned the amount of the fines to Mr Mbuzi’s account. Mr Mbuzi, at T1-31 lines 23 to 31 accepted and asserted that he sought to have the fines withdrawn when he learned that $600 had been taken. The context from T1-30 reveals that Mr Mbuzi believed that SPER had deducted $600 and that Mr Mbuzi sought to have the deduction reversed. At T1-33 and 34 Mr Mbuzi appears to accept assertions by the police prosecutor to the bench that SPER received on 19 March 2012 an application from Mr Mbuzi electing to dispute the two infringement notices and to have the matter determined by a court. Mr Mbuzi then asserted to her Honour the magistrate that he had not received the fines, by which he implied that, whatever SPER or the Department of Transport and Main Roads may have done with their books, Mr Mbuzi had not been given $600 of the $2,000 which he asserted SPER owed to him because of the order for costs in his favour. 
[118]	On that unsworn hypothesis: Mr Mbuzi did not pay the fines; SPER altered its account to reduce Mr Mbuzi’s balance by $600; that alteration to the account was rectified to restore $600 to Mr Mbuzi’s balance. Even on the unsworn hypothesis, Mr Mbuzi as the alleged offender did not ever pay the fine and after rectification of SPER’s book of account has not arguably paid the fine. 
[119]	As against that unsworn hypothesis is the sworn affidavit evidence of Mr Mbuzi from 12 November 2012 that he has ‘not paid the amounts indicated on the infringement tickets, instead opting for a court hearing’. 
[120]	Mr Mbuzi bears the onus on this appeal to establish the matters required for his reliance upon s 25 of the State Penalties Enforcement Act 1999. I am not satisfied that Mr Mbuzi paid the fine as required by either infringement notice. The argument that he may not be prosecuted is rejected. 
Was her Honour at liberty to hear and determine the trial in the Magistrates Court?
[121]	Mr Mbuzi argued that her Honour should not have proceeded to hear the trial: firstly, because a proceeding by Mr Mbuzi seeking judicial review had been instituted in the Supreme Court and Mr Mbuzi urged her Honour to adjourn the trial in the Magistrates Court to await the outcome of the proceeding in the Supreme Court. 
[122]	Mr Mbuzi’s argument to me did not identify what issues in the judicial review proceeding were common with the issues in the Magistrates Court proceeding. I assume that the basis of Mr Mbuzi’s submission to her Honour below was that Mr Mbuzi implied that findings to be made on the hearing of the Supreme Court application for judicial review would or could affect matters in the Magistrates Court proceeding. 
[123]	Mr Mbuzi did not identify in argument before me what the findings were that he preferred to have determined in the Supreme Court. I infer that he preferred the issue of whether his arrest on 24 December 2011 was a lawful arrest to be determined in the Supreme Court. Mr Mbuzi did not refer to authority or provide any further argument as to why her Honour could not properly determine whether Mr Mbuzi had committed the offence of public nuisance simply because he had instituted a proceeding in the Supreme Court.  
[124]	Secondly, Mr Mbuzi submitted that another magistrate at an earlier date had adjourned the trial of the public nuisance and resisting arrest charges because of the proceeding instituted in the Supreme Court.  
[125]	Thirdly, Mr Mbuzi submitted that her Honour should have adjourned the trial as Mr Mbuzi was requesting an adjournment because he was unrepresented and wanted representation. 
[126]	Her Honour exercised her discretion to proceed with the trial. Mr Mbuzi has not identified any error of law or fact by her Honour in determining to proceed to trial nor any prejudice arising from the fact that her Honour proceeded to trial or from the fact that Mr Mbuzi was unrepresented at trial.
[127]	If her Honour had made an error in determining to proceed at that time with a trial it seems to me that if Mr Mbuzi then suffered any prejudice, that prejudice has no continuing effect. Mr Mbuzi has, by this appeal, achieved a rehearing and in it has represented himself. If Mr Mbuzi’s argument was that the Magistrates Court in determining the criminal charges was incidentally deciding whether his arrest was lawful and if his argument was that the Magistrates Court was not the proper forum to decide that incidental issue Mr Mbuzi has had the benefit of having the issue determined in this court. Mr Mbuzi introduced the issue of whether his arrest was lawful to the issues in this appeal. 
[128]	I am not satisfied that her Honour made an error in refusing to adjourn the trial. If her Honour had made an error, I am not satisfied that Mr Mbuzi would now be entitled to any relief because of the error.
Conclusion
[129]	The appeal is dismissed. 
[130]	I am concerned that the form of order below, in imposing one total fine of $1,000 for two offences may involve an error. I heard no argument on the point. It seems unnecessary to put the parties to the expense of making submissions on that point. Accordingly, instead of confirming the orders made I will make another order imposing two fines of $500 instead of one fine of $1,000.
[131]	The parties are at liberty to make written submission on the issue of costs by filing and serving a copy of the party’s submission on costs, if any, on or before 22 October 2015 and by filing and serving the party’s submission in reply on costs, if any, on or before 29 October 2015.