DISTRICT COURT OF QUEENSLAND

CITATION:	MTJ v Commissioner of Police [2015] QDC 330   	
PARTIES:	MTJ
(Appellant)
and
COMMISSIONER OF POLICE 
(Respondent)	
FILE NO/S:	3036/15	
DIVISION:	Appellate 	
PROCEEDING:	Appeal under s222 of the Justices Act 1886 (Qld) 	
ORIGINATING COURT:	District Court at Brisbane 	
DELIVERED ON:	4 December 2015, ex tempore	
DELIVERED AT:	District Court at Brisbane  	
HEARING DATE:	4 December 2015	
JUDGE:	Devereaux SC DCJ	
ORDER:	1.	The appeal is allowed.
2.	The order of the learned magistrate convicting the appellant is set aside. 
	
CATCHWORDS:

	APPEAL: where appellant was charged with obstructing police during a personal search; where police officers did not warn the appellant it was an offence to obstruct; whether it was reasonably practicable to warn; whether failure to warn undermines charge

Legislation:
Police Powers and Responsibilities Act 2000 (Qld) ss.29, 391, 628, 790
Cases: 
Cox v Robinson [2000] QCA 454
R v McBride [2008] QCA 412
Rowe v Kemper [2008] QCA 175	
COUNSEL:	C. Smith for the appellant
W.M. Slack for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant
Office of the Director of Public Prosecutions on behalf of the Queensland Police Service for the respondent 	

HIS HONOUR:   The appellant was convicted after a summary trial on 13 July 2015 of obstructing police under – a charge brought under section 790 of the Police Powers and Responsibilities Act 2000.  That section provides that a person must not assault or obstruct a police officer in the performance of the officer’s duties.

The appellant appeals on two grounds.  One is that the verdict is unreasonable and not supported with regard to the evidence.  The amended notice of appeal includes the ground that the trial magistrate erred by convicting upon a standard less than proof beyond reasonable doubt.  I am satisfied the appeal should succeed and the conviction should be set aside, and I will attempt to articulate briefly why.

Police encountered the appellant and a male friend at about 12.30 am on the morning of Saturday 4 October 2014.  The pair were at a bus stop at Kallangur on Anzac Avenue.  That’s a big road, but it’s an outer suburban area.  The police evidence was that their attention was drawn to the pair because it was late, they were at a bus stop, and the female, that is, the appellant, was seen to walk around the bus stop when she saw police.  Two officers spoke to the pair, and one of them, Cudunski, formed a view that they might have been drug-affected and have drugs on them.  

The young man agreed to be searched, and something called an ice pipe was found on him.  The young man said he was a junkie.  Police also formed a view that they should search the appellant.  She was observed to have “glassy, blood-shot eyes and dilated pupils”.  At some stage, although it’s not entirely clear whether it was before the appellant was detained for the purposes of the search by one of the male officers, the young man said something like, “anything that’s on her is mine.”  That is also relied on by the prosecution as giving rise to a reasonable suspicion that the appellant was in possession of an unlawful dangerous drug.  

One of the arguments with respect to the first ground of appeal is that there was insufficient evidence to give foundation to a reasonable suspicion.  I think that in all the circumstances, even in the brief outline I’ve already given, it was open to the officers to form - and open to the magistrate to conclude that the officers formed - a reasonable suspicion.  In my view, there’s nothing in that argument.

What then occurred was the male officers, having detained the appellant, told her to wait because they would call a female officer to conduct the search of her, and that’s what happened.  According to that female officer, whose name was Jimmison, she arrived about three to five minutes after a call.  The appellant’s own evidence was that the female officer arrived about five to 10 minutes after the call.  

It’s what happens in the short time after that that is crucial to the outcome of the appeal, and it’s really only necessary to refer to some of the evidence of the police officer herself to determine the matter.  Jimmison’s evidence was that she arrived and received some information by the other officers, in effect told that they had detained the appellant.  Jimmison did not give evidence that she herself formed any view or reasonable suspicion about the appellant, nor that she herself personally detained the appellant.  

Her evidence was that she asked the other officers the appellant’s name and then addressed the appellant by her first name and asked for her age.  The appellant told her that she was 18.  There are disputes about these matters.  The appellant gave different evidence.  But I’m not, at the moment, concerned with that.  I’m just referring to Jimmison’s evidence.  Jimmison said that she then told the appellant then she would be conducting a pat down search of her, and that she gave the appellant her name, rank and station.  

I just want to pause there, because earlier, Cudunski had, according to his evidence, asked the appellant her name and her age.  He said the appellant told him that she was 17.  He said he detained her for the purposes of a search because he reasonably believed she had drugs on her.  His evidence was that he then gave her a caution, by which he meant:

Her rights to silence and then right to telephone or speak to a friend, relative or lawyer.

He said he advised the appellant that because they were both male officers, they’d be getting a female officer to attend.

So returning to Jimmison’s evidence, she said she asked the appellant whether she had anything that could harm the officer such as needles or syringes.  She said she walked to the appellant and got her to take off a big jumper that she was wearing.  She searched the jumper.  She asked the appellant first whether the appellant had anything underneath the jumper.  The appellant said that she did.  The witness continued:

I’ve gone to unzip that, and not longer after that, I asked if she had anything hidden in her bra.

The witness gave a reason for asking that, which is not relevant at the moment.  Her evidence continued:

The moment I’ve asked that, and then I’ve gone to put my hands up, and then she’s pulled away.

She was then asked to describe where people were and precisely what she did.  She said:

She was on the left hand.  I was on her right side.  She was facing this way, this side, and I’ve gone – as I’ve gone up to put her hands on the side of her, and that’s when she’s moved away and said, no, and moved in the direction back towards the bus stop.

How far did she move?‑‑‑About a metre.

And what happened then?‑‑‑I then put both my hands on the side of her arm – on this side of her arm, which is her right, and then she’s – I can immediately feel her tensing up and still pulling away from me, and at that time, Constable Brooks has come around the other side and grabbed on – and held on to her opposite side of her arm, which was her left.

In re-examination, the officer said, when asked to describe exactly where her hand was in relation to the defendant and her clothing:

It was in the air, and at that stage it – I would have been coming towards the defendant.  I didn’t go up – I didn’t go up her clothing near her skin.  It was on the – my hand was coming up in the air to commence the pat down search.

She denied, as she had under cross-examination, touching the appellant underneath her clothing.  Again, I comment that the appellant gave evidence quite different from that, but it’s not necessary to attempt to resolve any factual disputes, given the view I’ve taken of the matter.

Once Jimmison and then the second officer, Brooks, took hold of the appellant, things quickly deteriorated.  She was, as the police officers say, “transitioned” to the ground, and from then on her behaviour became very difficult and violent.  The appellant also suffered some injuries - some photographs were tendered at trial.  As I commented during the hearing of the appeal, what happened thereafter was interesting but not relevant to the resolution of the matter, because if the appellant committed an offence, it was committed and completed before she was taken to the ground, and if she is not guilty of an offence before she was taken to the ground, she was not guilty of one after that.

Section 29 of the Police Powers and Responsibilities Act provides that:

A police officer who reasonably suspects one of the prescribed circumstances for searching a person without a warrant exist may… 

(a) stop and detain a person 
and/or:

(b) search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.

Section 628 of the Act provides that:

If the person – 

referred to as the obstructing person in the section – 

...obstructs a police officer conducting a lawful search of the person, the officer must, if reasonably practicable, warn the obstructing person it is an offence to obstruct a police officer in the performance of the police officer’s duties and give the obstructing person a reasonable opportunity to stop obstructing the search.

Subsection (2) reads:

It may not be necessarily practical for a police officer to comply with subsection (1) if, for example:  (a) there is an immediate or sudden need to use force because, for example, a person is struggling with a police officer;  or (b) there is a reasonable expectation that, if warned the person may immediately dispose of or destroy evidence;  or (c) an immediate search is necessary to protect the safety of any person. 

It is common ground that the officers – in particular, Jimmison – did not warn the appellant as required by section 628.  The Prosecution argument at trial was that it was not reasonably practical to do so, and the same submission is made on appeal.  The learned magistrate dealt with this particular matter by setting out section 628, and then saying this:

A qualification is there for the perfectly sensible reason that it’s unreasonable to expect a police officer, who has detained a person, who is in the process of resisting, to, effectively, take their hands away and stop the detention to give them an oral warning whilst the person being detained is not complying, or struggling, or in some other way reacting violently.

His Honour might be correct, but I disagree that that rationalisation applied in this case.  Although section 628 does not require a police officer to give the warning before commencing the search, in the circumstances of this case, and I’m sure in many cases, that would have easily been done.  It would have taken a few seconds and would have put the appellant on notice that to obstruct would be an offence.  It also would have avoided the need for the argument that was conducted on this appeal.  

The circumstances of this case were that, at about 12.50am, which time it was by the time of the search, at a roadside at Kallangur, a police officer, having just asked whether the appellant had anything tucked into her bra, put her hands up as if to search her in that area, and the appellant stepped away.  If not before then, there was then a reasonable opportunity to tell the appellant not to obstruct the search, and that opportunity wasn’t taken.  The example set out in subsection 628(2) do not fit the case before me.  It is unfortunate that the officers immediately chose to take hold of the appellant.

I’m satisfied there was a breach of section 628, upon my own review of all of the evidence.  What happened thereafter, with respect to the appellant’s own conduct, was no credit to her, but as I said earlier, that doesn’t resolve the matter.  The question is, what follows from the failure of the police to give the warning?  The 
proper analysis of it, I think, is that police then arrested the appellant, indeed, arrested her as soon as a hand was laid on her.  To do so without giving a warning was not, in my view, to act in the exercise, lawfully, of a power.  Some analogy can be drawn between the cases of Rowe v Kemper [2008] QCA 175 and Cox v Robinson [2000] QCA 454.

Rowe v Kemper concerned the charge of failing to comply with a move-on order, or a move-on direction.  Section 391 included the following:

Even if the person fails to comply with the requirement or direction a police officer must, if reasonably practicable, warn the person it is an offence to fail to comply with the direction or requirement unless the person has a reasonable excuse, and the person may be arrested for the offence.

That section then required a police officer to give the person a reasonable opportunity to comply.  McKenzie AJA said, at [122]:

Giving a further reasonable opportunity to a person when a direction is given, is a step in a sequence of statutory requirements which must be complied with by a police officer before an offence of failing to comply with the direction is complete.  If the police officer who gives the direction does not give an opportunity that is objectively reasonable to the person to comply with the direction, a suspicion that the person has committed an offence of failing to comply with it, falls short of being a reasonable suspicion.

Cox v Robinson was concerned with a charge of failing to attend a police station within 48 hours to give personal particulars.  The particular section included subsection (3), as follows:

A police officer must warn the person it is an offence to contravene a requirement under the section.

The argument there was that some writing on the written notice was not necessarily sufficient warning.  There had to be an effective communication of the warning.  

Neither counsel can produce a case directly on point.  And it seems to me easily to follow that the legislative requirement to give a warning, if not followed, undermines the police officer’s assertion of acting in the execution of duty, because it’s not lawfully acting in execution of duty to arrest a person without following the statutory requirement in section 628.  The charge, under section 790, is one of obstructing in the performance of the officer’s duties, and I’m not satisfied that charge is made out.

In view of that, it’s not necessary to deal with other arguments or the other ground.  I have already noted that I am satisfied that it was open to the officers to have a 
reasonable suspicion in order to found a search.  The second ground of appeal arose from remarks by the learned magistrate at the beginning of his Honour’s reasons, to this effect:

The defendant is charged to give evidence in this trial, and, obviously, her evidence is merely included amongst the prosecution evidence.  It has no greater or lesser weight than that other evidence, and I assess it, and neither accept or reject some or parts of it, as I see fit, in the same way as I do the prosecution evidence.

The argument is that those remarks indicate the learned magistrate engaged in an exercise of weighing up one side against the other.  If that were so, that would be wrong, because, of course, the onus is on the prosecution to prove guilt beyond reasonable doubt, and there is no onus on an accused.  Reference is made to R v McBride [2008] QCA 412.  I’m not sure that the magistrate meant that.  I think his Honour  was probably saying no more than that an accused person’s evidence is part of the body of evidence which has to be considered.  In any case, I’ve already said, it’s not necessary to resolve that in order to decide the matter.

The orders will be that the appeal is allowed, and the order of the learned magistrate, convicting the appellant, is set aside.  

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