DISTRICT COURT OF QUEENSLAND
CITATION:
Oliver v Commissioner of Police [2017] QDC 316
PARTIES:
JARED DAYNE OLIVER
(appellant)
v
COMMISSIONER OF POLICE
(respondent)
FILE NO/S:
2559 of 2017
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Caboolture
DELIVERED ON:
21 December 2017
DELIVERED AT:
Brisbane
HEARING DATE:
24 November 2017
JUDGE:
Richards DCJ
ORDER:
Appeal allowed. Conviction set aside.
CATCHWORDS:
POLICE – RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES – OTHER MATTERS – where an identifying particulars notice was given – whether the identifying particulars notice was a valid notice
Police Powers and Responsibilities Act 2000 (Qld), ss 470, 791
COUNSEL:
Mr JP Feely for the appellant
Mr JJT Dudley for the respondentSOLICITORS:
Murray Tutt Legal for the appellant
Office of the Director of Public Prosecutions for the respondent
The appellant was charged pursuant to s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’) for contravening a direction or requirement, namely that he failed to attend the Caboolture police station for the purposes of providing identifying particulars. He was convicted and fined $250 after a trial.
He has appealed that decision on a number of bases, namely:
1. The magistrate erred in law by finding that the requirement had been validly made in circumstances where the word “reasonably” had been omitted from the requirement.
2. The magistrate erred in law in his interpretation of s 470 of the PPRA.
3. The magistrate erred in law by taking judicial notice of the conditions at the Caboolture police station generally and on 28 September 2017.
4. The magistrate erred in law by reversing the onus of proof in relation to the requirement to stay at the Caboolture police station for the time reasonably necessary to enable identifying particulars to be taken or photographed.
5. The magistrate erred in fact by deciding the matter in the absence of evidence of the conditions at the Caboolture police station on 28 September 2017.
6. The magistrate erred in fact by drawing inference adverse to the appellant which were not open on the evidence.
7. The magistrate erred in fact by find that the appellant had not remained at the Caboolture police station for a time reasonably necessary to enable identifying particulars to be taken or photographed.
8. The verdict was unreasonable having regard to all of the evidence.
Section 470 of the PPRA states:
“470 Identifying particulars notice may be given
(1) A police officer may, by written notice (identifying particulars notice) given to the person, require the person—
(a) to report to a police officer at a stated police station or police establishment within 7 days after the issue of the notice to enable a police officer to take or photograph all or any of the person’s identifying particulars; and
(b) to stay at the police station or police establishment for the time reasonably necessary to enable the identifying particulars to be taken or photographed.
(2) The identifying particulars notice—
(a) may state the days and times within which the person must attend the police station or police establishment; and
(b) must state—
(i) it is an offence to fail to comply with the notice; and
(ii)that, before the identifying particulars are taken, the person must produce satisfactory evidence of his or her identity; and
(c)must be given to the person with the notice to appear or complaint and summons; and
(d) must be signed by the police officer giving the notice.
(3) If the person attends at a police station or police establishment as required under the identifying particulars notice, a police officer may take or photograph all or any of the person’s identifying particulars.”
At the trial of this matter the prosecution called two witnesses: Acting Sergeant Patrick Joseph Lyons, the person who served the notice on the appellant, and Constable Matthew Strudwick, the arresting officer. Two exhibits were tendered, namely, a copy of the identifying particulars notice and a copy of the register from the Caboolture police station including an entry relating to the appellant on 28 September 2017. The register established that the appellant did attend the Caboolture police station on 28 September 2017 and that he had stayed there for 40 minutes from 10.50am to 11.30am. His identifying particulars were not taken during that time.
A number of matters were raised at the trial and on this appeal. The trial was run on the basis that the identifying particulars notice was deficient in that it stated that he was required to stay at the police station or establishment for the time necessary to enable his identifying particulars to be taken or photographed. The requirement did not include the word “reasonably” and it was submitted that this was a fatal flaw with the notice. The secondary argument was that in any event there was no evidence that staying for 40 minutes was not a time that was reasonably necessary in the circumstances. The appeal was conceded by the Crown in relation to all of the matters raised.
The Notice
In making submissions at the trial, the police relied on two separate matters, firstly that the appellant did not report to a police officer but to an administration officer and therefore had failed to comply with that part of the direction and that the omission of the word “reasonably” from the notice did not affect the validity of the notice. The magistrate found that the notice was a valid notice because it complied with subsection (2) of s 470 of the Act which sets the mandatory conditions for the notice. The magistrate decided that it was sufficient for compliance that the notice stated that it was an offence to fail to comply with the notice, that it was signed by the police officer giving the notice and that it stated that the appellant had to take the necessary identification with them.
The appellant submits that the notice could not be valid because the requirement to attend for the time necessary was a requirement that went beyond s 470 of the Act and therefore invalidated the notice. The warning that it was an offence to fail to comply with the notice was, as a result, an incorrect statement because the requirement to stay at the police station for the time necessary to enable identifying particulars to be taken or photographed was ultra vires. There is no time limit attached to the requirement in the notice and no requirement that the attendance at the police station only be for a reasonable time.
The appellant attended the police station and was there for a period of 40 minutes. If the notice was valid then the appellant was clearly in breach of that notice because he didn’t stay at the station for the time necessary to take the identifying particulars. However, the prosecution were required to prove that he did not stay for a reasonably necessary time. Given that a criminal offence arises from a failure to comply with the notice, the notice should correctly state the requirement under the Act and in this case the notice did not. Thus, in my view, it is an invalid notice.
The submission that the appellant did not report to a police officer should also be rejected. He went to the counter of the Caboolture police station and the evidence was that the administration officer who took his name would then advise the watch house that he was present. This is in my view sufficient to amount to a report to a police officer.
The Evidence
Further, there was no evidence before the court which would allow the magistrate to make a determination about whether the appellant had stayed at the station for a reasonable amount of time. The magistrate, in his reasons, indicated that he took judicial notice that the Caboolture police station was a busy station and that it was not appropriate for the accused to leave without making some enquiries as to the progress of the matter or to take upon himself to determine what was an appropriate time. Whilst these would have been relevant factors in deciding whether the time that he waited was reasonable, the onus was not on the appellant to prove that he had been there for a “reasonably necessary” amount of time. It was for the police to show that he had not waited for a reasonable time. Whether the time was reasonable was a matter for the magistrate to decide but there needed to be facts before him upon which he could make such a decision. The only evidence before him about how long it normally took was from the police witness, Strudwick, who gave evidence as to the usual front counter procedures and the time it took to take identifying particulars. He was asked:
“Constable, could you describe the front counter procedures when a person comes in to have their identifying particulars taken?”
“Certainly. The person will come and speak to the administration officers. They are administration officers – they are not police officers – who sit at the front counter. They – administration officers will either take their name. If they’re within their time, they’ll contact the watch house and the watch house will send someone up to speak to them. If they are outside the period, the administration officers will inform a police officer who will attend to the matter as soon as they are able”.
“Thank you, and what else does the administration officer ask the person to do?”
“What they’re there for and to wait until they’re spoken to by an officer.””[1]
[1] T1-7 L32-42.
The officer indicated that normally, if the watch house is free, it would take from 10 to 15 minutes to process someone. If the watch house was busy it could take up to 30 minutes.
No one was called to indicate whether Caboolture police station was in fact busy on the day in question, whether the watch house was full or empty and whether the appellant had in fact asked if it would be much longer, if he could leave, or anything of that nature. In those circumstances, it was not open for the magistrate to find that Caboolture was a busy station on the day in question or to take judicial notice of the fact that Caboolture is usually a busy station. As such, the Crown case was not proven beyond reasonable doubt.
For all of the reasons above, it is appropriate that the appeal be allowed, the conviction set aside and a verdict of acquittal entered.