Fletcher v Harris [2005] ACTSC 27 (18 April 2005)

Last Updated: 11 May 2005

FLETCHER v HARRIS

[2005] ACTSC 27 (18 April 2005)

APPEAL - criminal law - whether physical disabilities affected appellant's resistance to arrest and assault on police officer - whether swearing at staff terminates license to remain on business premises - whether tape-recording conversations with staff terminates license to remain on premises - prosecutors to establish that appellant intended to strike police officer; belief insufficient - relationship between Human Rights Act 2004 (ACT) and Commonwealth legislation - must consider reasonableness of request to leave - prior record of assault not relevant to sentence for charge of passive resistance to leaving.

Crimes Act 1900 (ACT), ss 26, 392 and 404

Criminal Code Act 1995 (Cth), s 149.1(1)

Public Order (Protection of Persons and Property) Act 1971 (Cth), ss 11(2)(c), 112B and 12(2)(c)

Human Rights Act 2004 (ACT).

Animal Welfare Act 1992 (ACT).

O'Hair v Killian (1971) 1 SASR 1

Tankey v Smith (1981) 36 ACTR 19

Hallion v Samuels (1978) 17 SASR 558

Commonwealth of Australia v Graves (1996) 142 ALR 290

Halliday v Nevill (1984) 155 CLR 1

Mackey v Abrahams [1916] VLR 681

Barker v R (1994) 127 ALR 280

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333

Henshaw v Mark (1997) 95 ACrimR 115

Mark v Henshaw (1998) 85 FCR 555

Bloomfield v Brown [2003] ACTSC 43 (4 June 2003)

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 28 of 2004

Judges: Higgins CJ

Court of Appeal of the Australian Capital Territory

Date: 18 April 2005

IN THE SUPREME COURT OF THE )

) No. SCA 28 of 2004

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: GRAHAM WALTER FLETCHER

Appellant

AND: STEVEN NOEL HARRIS

Respondent

ORDER

Judges: Higgins CJ

Date: 18 April 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The conviction and penalty for assault be set aside and a finding of not guilty substituted. The information is dismissed accordingly.

2. The finding of guilt in respect of failure to leave premises is confirmed but the conviction and penalty is set aside and in lieu thereof the information will be dismissed upon the appellant entering into a recognizance to be of good behaviour, in the sum of $200 for a period of 12 months from today.

3. I will hear the parties as to costs.

1. 1. The appellant was, on 8 May 2002, charged upon information and summons with four offences namely:

That he, in the Australian Capital Territory, on 15 April, 2002, whilst being in premises, to wit, NRMA Office, Phillip, did refuse, without reasonable excuse, to leave those premises on being directed to do so by Sue Funnell, a person acting with the authority of the occupier

And that

On 15 April, 2002 at NRMA Office, Phillip in the Australian Capital Territory, Graham Walter Fletcher knowing that another person, namely Constable Steven Harris was a Commonwealth public official, obstructed the said official in the perfomance [sic] of the official's functions as a Commonwealth public official, contrary to subsection 149.1(1) of the Criminal Code (Cth).

And that

On 15 April, 2002 at NRMA Office, Phillip in the Australian Capital Territory, Graham Walter Fletcher knowing that another person, namely Constable Shawn Selles was a Commonwealth Public Official, obstructed the said official in the perfomance [sic] of the official's functions as a Commonwealth Public Official, contrary to subsection 149.1(1) of the Criminal Code (Cth).

And

That he, in the Australian Capital Territory, on 15 April, 2002, did assault Constable Steven Harris whilst in the execution of his lawful duty.

2. This matter came before Magistrate Madden for hearing on 24 March 2004. At that stage, the fourth charge had been amended to strike out "whilst in the execution of his lawful duty". That amendment was made on 4 August 2003. In all probability, this was done to reflect the terms of s 26 Crimes Act 1900 (ACT). The charge was purportedly laid under that provision, which states that:

A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.

THE TRIAL IN THE MAGISTRATES COURT

Federal Agent Shawn Selles

3. On 24 March 2003, Federal Agent Selles gave evidence that, pursuant to a complaint received, he had attended at the NRMA offices at Woden. It was alleged that the appellant had been abusing and swearing at NRMA staff. When the police officers arrived, the appellant appeared emotionally agitated and sat "tapping his cane". Ms Susan Funnell, manager of the branch, formally requested the appellant to leave the premises but he did not respond to this request. The two police officers repeated Ms Funnell's demand several times and warned the appellant that it was an offence to refuse to leave the premises.

4. The appellant was then told that he was under arrest for refusing to leave the premises. Agent Selles and Constable Harris attempted to have the appellant leave with them.

5. The appellant waved them away and said, "No, no, I've got a right to be here". The officers then took hold of each of his elbows and lifted him out of the chair.

6. As they walked to the front doors, the appellant was waving his cane around and "wriggling, struggling, basically digging his heels to [sic] the floor". While the appellant was being relieved of his cane, Agent Selles was struck on the shin. It was not suggested that this was a deliberate blow.

7. The officers took the appellant to the police van in order to place him in it. The appellant was swearing and directing abuse at them. By that stage, the appellant had been handcuffed. He was lifted into the back of the van and placed on his back. As Constable Harris moved to close the doors, the appellant lashed out with his foot and struck Constable Harris on the jaw. It is not clear whether that action was directed towards a) striking Constable Harris; or b) towards preventing the door closing on his legs, which were then protruding from the rear of the van.

8. The appellant made that point in cross-examination. It was accepted that he was physically disabled and, for that reason, had the walking stick. Agent Selles conceded that he did not know whether those disabilities affected the appellant's apparent resistance to arrest and removal from the NRMA premises, including resistance to the doors of the police van being closed against his protruding legs.

Ms Susan Funnell

9. Ms Susan Funnell gave evidence that, prior to the incident on 15 April, Ms Sharon Wood, another NRMA employee, had also complained about the appellant's behaviour. This was not the only occasion that such a complaint had been made. The cause of the upset on the day in question (15 April) was that Ms Margaret Lester, another NRMA employee

... had told me [Ms Funnell] that Mr Fletcher had a tape recorder and was recording the conversation and I was unhappy about that and asked him to turn the tape recorder off which he refused to do.

10. Ms Funnell heard the appellant refer to another employee (a male person) as "a female impersonator". He referred to staff as "a bunch of clowns"; this comment was apparently directed at staff generally. When Ms Funnell asked the appellant to leave, he responded, "No, I'm not leaving till this problem is resolved, I'm staying here".

11. Ms Funnell called the Woden Plaza security guards; they called police. The Appellant maintained his refusal to leave the NRMA premises until police arrived.

12. Ms Funnell was, perhaps inappropriately, upset that the appellant was tape-recording conversations with staff; this was a sufficiently legitimate exercise if the appellant had issues with NRMA that he wished to be resolved. However, she also made it clear that the appellant's rudeness and name-calling of staff was "unacceptable. We don't have to deal with that."

Mr Mark Waugh

13. The matter was adjourned to 17 May 2004, part heard. Mr Mark Waugh, a security guard, gave evidence that, at Ms Funnell's request, he had asked the appellant to leave the NRMA office. The appellant responded, "No, I have every right to be here".

14. Mr Waugh stated that when removed by police, the appellant simply became "a dead weight". The appellant refused to enter the police van; he resisted until he was handcuffed. Mr Waugh did hear a thud after the appellant was placed in the back of the van.

15. In his occurrence report, Mr Waugh stated that

As the male was being placed into the back of the wagon by one of the officers the male looked to fall forwards and as he fell forwards he back heeled a kick which connected to the officer's chin.

16. This differs to some extent from Agent Selles' account. However, it still leaves the possibility that the blow to Constable Harris's chin was not intended to connect with his body. Mr Waugh acknowledged that this was his recollection of the incident at the time he wrote he report.

Constable Steven Harris

17. Constable Steven Harris was the final prosecution witness. As to the kick, Constable Harris said:

As he [the appellant] went in [to the van] he landed on his stomach and as he was going down his foot, I don't remember which one, kind of back heeled out and clipped me on the bottom of the chin.

18. Constable Harris believed the kick to have been "intentional" because "only

only one foot came up." This reason is far from persuasive and does not advert to any possible effect of the appellant's apparent physical disabilities.

The Appellant's tape-recorded conversation with NRMA staff

19. The appellant's tape recording, as copied by police, was played and transcribed, though the appellant objected to it. I have to say that his Worship was entitled to receive it as evidence, for what it was worth.

20. The tape does indicate that the appellant was verbally aggressive, albeit not threatening. In the tape, he refers to "the clowns here" and "the female impersonator". He also alleges "fraud".

Constable Harris's police statement

21. For some reason, the appellant requested that Constable Harris's police statement be entered into evidence. It was. It adds nothing to the oral evidence.

Indictable offence and need for consent for summary jurisdiction

22. His Worship adverted to the fact that fail-to-quit-premises charges are indictable offences; consent is needed to deal with these matters summarily. His Worship also adverted to the possibility of the appellant giving evidence. However, at the conclusion of Constable Harris's evidence, the transcript is not reproduced. The appellant gave no evidence; he consented to summary jurisdiction in respect of the indictable matters. His Worship certainly recorded that as being the case.

Magistrate's findings

23. On 17 May 2004, Magistrate Madden made his decision. His Worship accepted that the appellant had a genuine grievance concerning a home contents policy and that he attended the NRMA offices at Woden for the legitimate purpose of redressing that grievance. He spoke with Ms Lester. His Worship accepted that the appellant referred to the women in the premises "a bunch of clowns"; "female impersonators"; and "unregistered dogs".

24. These quotations are not entirely accurate. According to the transcript of the taped conversations, the appellant said, "I spent about two months with the clowns here"; "what about the female impersonator that usually ..."; and at the conclusion of his conversation, "... we've still got the two weirdos by the door and the assorted strange people in here carrying on like unregistered dogs."

25. Nevertheless, the substance is much the same and his Worship does refer expressly to the taped comments. It was not disputed that Ms Funnell asked the appellant to leave the premises; neither was it disputed that he declined to do so, both expressly and by his conduct.

26. The appellant was forcibly removed from the NRMA premises; self-evidently, he failed to cooperate in doing so. He was also physically uncooperative in being placed in the police van. Of course, there is no evidence to dispute the account of the appellant's foot striking Constable Harris on the chin.

27. Clearly, as his Worship noted, the appellant's failure to cooperate did make the task of Agent Selles and Constable Harris more difficult. However, as to the role of the appellant's apparent disability in those incidents, his Worship said:

I'm fairly confident they're not necessarily attributable solely to the police officers discharging their function, but also Mr Fletcher's general physical condition...

28. It is not clear to me what his Worship was intending to convey by these remarks; with no further elucidation, his Worship found the offences proved.

The penalties imposed

29. The penalties imposed were as follows:

The first count

The appellant was convicted. He was fined $200; ordered to pay $53.00 in court costs; and ordered to pay a $50 Criminal Injuries compensation levy. He was ordered to pay within 90 days.

The second count

The Magistrate found the second count proved and ordered a recognizance to be of good behaviour for 12 months, in the sum of $600.

The third count

As with the second count, the Magistrate found the third count proved and ordered a recognizance to be of good behaviour for 12 months, in the sum of $600.

The fourth count

Although the Magistrate found the fourth count proved, it was dismissed.

THE APPEAL TO THE SUPREME COURT

30. The appeal was heard on 16 December 2004. At the outset, it became apparent that the two counts alleging obstruction of Agent Selles and Constable Harris had been amended on 15 May 2004. Regarding Constable Harris, the word "obstructed" was struck out; it was not replaced by another word. The charge relating to Agent Selles was similarly amended: the word "obstructed" was struck out; the word "resist" was written below the charge.

Obstructing and Resisting Arrest

31. The relevant provision is s 149.1(1) Criminal Code Act 1995 (Cth), which commenced 24 May 2001. That provision provides that:

(1) A person is guilty of an offence if:

a. the person knows that another person is a public official; and

b. the first-mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official's functions; and

...

Penalty: Imprisonment for 2 years.

32. The terms "obstruct" and "resist" in relation to police and other officers is well known. Further, it is well settled that failure to cooperate in an arrest is not obstructing or resisting police O'Hair v Killian (1971) 1 SASR 1; Tankey v Smith (1981) 36 ACTR 19. Further, behaviour after completion of the relevant duty to arrest is not resisting arrest, see Hallion v Samuels (1978) 17 SASR 558.

33. On the facts of this case, had the relevant duties been properly specified, the offence of obstructing or resisting police in relation to being placed in the police van might have been made out against the appellant. However, as Mr Lawton for the respondent conceded, the charges were, on their face, defective. Hence, on 16 December 2004, I so found and set aside the findings and sentence with respect thereto.

Assault Against Constable Harris

34. Next is the charge of assault. It was, of course, incumbent on the prosecution to establish that the appellant intended to strike Constable Harris with his foot; it was insufficient to prove that Constable Harris believed that the appellant had so intended.

35. It is clear that his Worship made no positive finding that the appellant intended to strike Constable Harris. Indeed, in the present circumstances, it does not seem to me that such a conclusion could be drawn without an admission, some statement of intent, or some other gesture from the appellant. On the facts, he was a physically disabled person who was forcibly bundled into a police van; the doors were about to be closed against his protruding legs; he fell onto his hands and knees; he was facing away from the closing doors (and it was not shown that he looked back at them). If anything, the kick was consistent with the appellant attempting to prevent the doors impacting on his legs.

36. In those circumstances, though the charge was correctly expressed, it is apparent that the evidence was not sufficient to support the finding of guilt. Mr Lawton did not contend to the contrary. Consequently, I uphold the appeal in relation to that matter; I set aside the appellant's conviction and substitute a finding of not guilty. I dismiss the information accordingly.

Failing to leave NRMA premises

37. Finally, that leaves the matter of failing to leave premises contrary to s 11(2)(c) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). In passing, I note that, being a Commonwealth Act, that provision is not modified in its effect or interpretation by the Human Rights Act 2004 (ACT).

38. Nevertheless, there has been judicial consideration of both s 11(2)(c) Public Order (Protection of Persons and Property) Act, and the parallel provision in s 12(2)(c) (which relates to Commonwealth premises).

39. Mr Bevan, for the appellant, relied on Commonwealth of Australia v Graves (1996) 142 ALR 290, a decision of the NSW Court of Appeal. That case was in relation to a claim for wrongful arrest. Section 11(2)(c) of the Act provides that a person who,

[B]eing in or on premises in a Territory, refuses or neglects to leave those premises on being directed to do so by the occupier or a person acting with the authority of the occupier is guilty of an offence.

In its original form, s 11(2)(c) provided that a person who,

[B]eing in or on premises in a Territory, refuses or neglects, without reasonable excuse, to leave those premises on being directed to do so by the occupier or a person acting with the authority of the occupier is guilty of an offence. (Emphasis added)

However, the Act has now been amended to include s 11(2B). That section of the Act provides that:

Subsection (1) and Subsection (2)(c) do not apply if the person has a reasonable excuse.

40. Commonwealth of Australia v Graves considered s 12 in its original form, that is, with the inclusion of the words "refuses or neglects without reasonable excuse". In that case, the respondent had been requested to leave Commonwealth premises and was taken into custody by federal police officers when he failed to do so. He sued for wrongful arrest, false imprisonment and assault. It was contended that the respondent's arrest had been unlawful, as no apprehending officer had asked him for his reason for refusing to leave the premises. Accordingly, it had not been possible to evaluate the reasonableness of his explanation as an "excuse".

41. That contention was rejected by Sheller JA, with Gleeson CJ and Giles AJA concurring. His Honour said (at 293):

With the greatest respect I do not think this is how the subsection operates. Pursuant to the subsection, it is the duty of a person on Commonwealth premises, when clearly directed by a constable to leave them, to do so, unless that person has a reasonable excuse to remain there; cf Smith v Taylor (1978) 23 ACTR 9 at 15 per Davies J. A refusal or neglect without reasonable excuse to comply with the direction gives rise to the offence under the subsection. What may be considered to be a reasonable excuse in a particular case is not explained and may be difficult to determine. However, the section does not require that before any direction is given to a person, the person has the opportunity, to which the trial judge referred, to communicate a [sic] excuse.

42. In Commonwealth of Australia v Graves, reference was made, in the particular circumstances, to the issue of "excuse". The respondent had been asked by the officers to leave an airport bar. A complaint had been made about his behaviour, but he was not behaving in an offensive or disorderly manner when police approached him. The police asked for his reason for being at the airport. When the respondent did not reply, he was directed to leave but he refused to go. After a struggle, he was arrested. Sheller JA found (at 294):

If it was necessary that the arresting constables have a belief that the respondent had committed an offence against s 12(2)(c) and in particular that the respondent had refused or neglected to leave the premises "without reasonable excuse", none of the police witnesses gave evidence of such a belief. If it was sufficient that there was a reasonable ground for such a belief, his Honour found that they had no reason for it. As his Honour remarked, the reasonable excuse for the respondent's presence at the bar was self evident. So far as the police could observe, he was merely having a drink at public bar.

43. The appeal by the Commonwealth was dismissed accordingly.

44. Both s 11 and s 12 were amended with effect from 24 May 2001. The effect, relevantly, was to remove "without reasonable excuse" from the specification of the offence. Instead, the offence was limited to circumstances in which there was "no reasonable excuse". The initial formulation focussed on a reasonable excuse for neglecting or refusing to comply with the direction. The current formulation refers to "reasonable excuse" more generally. However, in Commonwealth of Australia v Graves it is apparent that Sheller JA accepted that the presence of the respondent at a public bar for an apparently lawful purpose, absent offensive or disorderly conduct warranting termination of his licence to be there, constituted "a reasonable excuse" for neglecting to leave when directed.

45. In most cases, the reason for the presence of the alleged offender will, as in Commonwealth of Australia v Graves, be evident. It was evident in the present case. The appellant contended that his reason for being on the premises was self-evidently reasonable; the respondent had failed to show that the appellant had no "reasonable excuse" for failing to leave premises when so directed.

46. The sections are intended to deal with trespassers. A person may trespass on premises and fail to leave when directed to do so; in such a case, the very entry and presence will have been unlawful. However, a person who enters premises of another lawfully may become a trespasser by violating the terms, express or implied, of his or her licence to be on, or to remain on, the premises.

47. For example, Halliday v Nevill (1984) 155 CLR 1, it, was held that there is an implied licence from an occupier to any member of the public to enter ordinary residential premises by an unobstructed path or driveway, so long as a) nothing is done to revoke or restrict that licence; and b) the purpose of entry is for ordinary, legitimate purposes.

48. In Mackey v Abrahams [1916] VLR 681 it was held that a police officer on business premises became a trespasser when he refused to leave when so directed by the shopkeeper. It was accepted that the license was revocable at will.

49. However, in Barker v R (1994) 127 ALR 280 the appellant approached the respondent with the ostensible purpose of seeking legal advice; in fact, the appellant had the ulterior purpose of recording a conversation for prosecution purposes. In that case, the Federal Court held that the appellant's presence on the premises did not constitute trespass. On the other hand, where a television crew "raided" premises that were otherwise open for business, it was held that the implied licence to seek information from, or to conduct business with, with the occupier had been exceeded, see Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.

50. Section 11 was discussed in Henshaw v Mark (1997) 95 ACrimR 115 where the respondents had entered a battery hen farm in order to expose the inhumane treatment of battery hens. Self-evidently, this was against the occupier's wishes. At first instance, the learned magistrate dismissed charges of trespass. His Worship found that the Crown had failed to show that the respondents had no reasonable excuse for trespassing; indeed, they were seeking to expose possible breaches of the Animal Welfare Act 1992 (ACT).

51. On appeal, Miles CJ accepted that the onus of excluding reasonable excuse rested on the prosecution to the usual criminal standard. However, his Honour also found that the section was not confined to violently effected trespass. His Honour stated (at 122):

But s11, which is clearly within Commonwealth power, is directed to "additional offences on premises in a Territory" (emphasis added) and is clearly not restricted to conduct which is violent or committed by assembled persons. Its otherwise Draconian effect is tempered by the requirement that a trespass is not punishable unless proved to have been committed without reasonable excuse.

52. His Honour held that the term "reasonable excuse" is to be adjudged according to:

The standard of the hypothetical ordinary member of the Community in the position of the person concerned is generally the standard to be applied in deciding what is reasonable.

53. This did not require an enquiry into battery hen farming practices, nor the alleged failure of authorities to prosecute those engaging in them.

54. His Honour concluded (at 123):

I have no doubt that if the magistrate had applied the objective test of the hypothetical ordinary member of the community, not to the justification of the defendants' beliefs, but to the justification of their entry and remaining upon their premises until their arrest, then there would have been a finding that the defendants lacked reasonable excuse for their conduct.

55. That decision was affirmed on appeal, see Mark v Henshaw (1998) 85 FCR 555, per Gallop, O'Loughlin and Finn JJ. Their Honours pointed out that the appellants' dominant purpose was not to render assistance to suffering birds; rather they sought to gain publicity for a cause in which they genuinely believed (at 559):

We do not accept that it is reasonable to enter as a demonstrator, upon the premise of another, when the occupant is carrying on a lawful activity of which the trespasser disapproves. To find otherwise would mean that the citizen would not receive the protection of the law to which he or she is entitled. It would mean that any dissident might be at liberty to enter his or opponents' premises in pursuit of a cause.

56. More recently, Connolly J upheld a conviction for an offence against s 12(2)(c) of the Act in respect of a person who refused to vacate a construction site on Commonwealth land opposite Old Parliament House. In Bloomfield v Brown [2003] ACTSC 43 (4 June 2003), the appellant protested against the construction of Commonwealth Place. Being an Aboriginal person, the appellant claimed that the land he was asked to leave was Aboriginal land and, hence, the direction was not one he was obliged to obey. He was maintaining a fire of spiritual significance to him; it was accepted that the appellant sincerely maintained these beliefs.

57. Connolly J accepted that "community standards" would determine the question of reasonable excuse. It was submitted that the area should be treated analogously with the Aboriginal Embassy site where Aboriginal occupation has been tolerated by the authorities over many years. As his Honour said at [41]:

These submissions, stressing community standards, may have real substance if there was any charge arising from a failure to leave the area known as the Aboriginal Tent Embassy that has existed and been, arguably, tolerated by successive governments and the broader community. But the learned Magistrate was, it seems to me, quite entitled to take the view that the evidence here was that the incident occurred at a different site, and at a site that had been fenced and was being readied, on the evidence, for the construction of Commonwealth Place.

58. These observations stress the need for objective reasonableness of the possible "excuse" for being on, or failing to leave, private or Commonwealth premises as the case may be.

59. It seems to me that any consideration of the reasonableness of a refusal or failure to leave premises must first consider the reasonableness of the request to leave. As Connolly J implies, there may be a situation where occupancy by the person asked to leave has been implicitly licensed. Even an occupant at will is entitled to reasonable notice and, in some cases, reasonable cause. Thus, as Graves J implies, an occupant of a public bar, though private premises, will be entitled to refuse a request to leave made without reasonable cause. Such a reasonable cause might be no fault of the occupant: closing time may have arrived; or it may be that the legitimate business of the occupant has been completed.

60. In the present case, it is clear that the direction to leave was precipitated by two circumstances. The first circumstance was that the appellant was tape-recording his conversation with NRMA staff. That was not a reasonable ground for requiring him to leave the premises. The appellant had a legitimate dispute with NRMA; if he intended to pursue the matter further, he was entitled to objective evidence to support his complaints. There was no prior condition imposed on the appellant's entry forbidding him from tape-recording conversations relating to legitimate business matters. Accordingly, persisting in tape-recording conversations with staff did not constitute a breach of his license to enter into, or remain on, NRMA premises.

61. The second circumstance was that the appellant's conversation went beyond pursuit of his legitimate business and descended to mere verbal abuse. It seems to me that such a circumstance would warrant a termination of a person's licence to be on premises to transact business. Of course, it is not necessary for the level of abuse to descend to a level constituting offensive behaviour if it is engaged in "near, or within, the view or hearing of a person in a public place", see s 392 Crimes Act 1900 (ACT). It is enough that, objectively, it is behaviour which the occupier has implicitly, if not expressly, forbidden. That is, it constitutes a breach of the entrant's licence to enter on and remain on the premises. Plainly, that level of behaviour would differ depending on the circumstances. A degree of raucous and ribald comment engaged in at a football match would be inappropriate at, say, a tennis match or a church service. Similarly, a degree of anger and dissent would be expected from a customer making a complaint as to goods or services on relevant business premises.

62. In this case, the learned Magistrate had a tape made by the appellant from which, with due allowance for private observations, gave the elements of tone and emphasis to his conversation with NRMA staff.

63. Had he said to staff, "I'll take it down to the fuckwits, we'll front them with it and record them", it would have entitled the person in charge to ask him to leave. Staff are entitled to a reasonable level of courtesy even in the course of a vigorous dispute.

64. The appellant did not, however, call staff those members he was addressing "a bunch of clowns". When speaking to Ms Lester, he referred to other staff members from previous transactions as "the clowns here and elsewhere". However, the conversation did not end there:

Ms Lester: "There aren't any clowns here, Mr Fletcher".

Appellant: "Aren't there?"

Ms Lester: "No there aren't any clowns here".

Appellant: "What about the female impersonator that usually -"

Ms Lester: "Excuse me, that's no way to talk about staff. If you're going to carry on like that, we'll ask you to leave, because we're not here to take..."

65. Ms Funnell intervened, informing the appellant that "security" was coming so that he might be removed. That clearly was not likely to, and indeed did not, improve the tone of the appellant's conversation. He referred to "customer relations" as "about as thick and as obstructive and as offensive and as - I missed something did I? ..."

66. The appellant did later comment about "the assorted strange people in here carrying on like unregistered dogs", but that was after he had been asked to leave the premises. It follows that the question is whether his references to "clowns" and "the female impersonator" constituted a reasonable cause to terminate the appellant's licence to be on the NRMA premises.

67. It seems to me that such conduct could be found sufficiently inappropriate to warrant a termination of a person's licence to remain on business premises to pursue an apparently legitimate complaint. Much depends on the demeanour of the complainant. His Worship had the advantage of hearing the tape and observing the witnesses who saw and heard the appellant up to the time he was asked to leave the premises. It seems to me, therefore, that his Worship would not have been in error to have concluded that Ms Funnell had reasonable cause to direct the appellant to leave the premises. Nor would his Worship have been in error to find that, by declining to leave, the appellant was in breach of s 11(2)(c) of the Public Order (Protection of Persons and Property) Act. In the present circumstances, the appellant had no reasonable excuse for refusing to quit the NRMA office; he might have had such an excuse if his behaviour had not been objectively inappropriate.

68. I appreciate that his Worship did not embark on an analysis of the appellant's liability to be found guilty of the offence in the same terms as I have done but, nevertheless, had he done so, the same conclusion would have followed.

69. The present offence was passive resistance to leaving, so the appellant's prior record for assault is not a circumstance that ought to have denied him leniency. This is because of the appellant's lack of prior relevant convictions; the genuineness of his grievance; the lack of any overt threats and the fact that his conduct would not have, in itself, amounted to the offence of offensive behaviour.

70. Here, the appropriate response was to record an adverse finding but not otherwise to proceed to conviction. However, given the ongoing nature of the appellant's grievance, a recognizance to be of good behaviour for 12 months would have been appropriate in the sum of $200. Accordingly, the penalty is set aside and a recognizance in those terms imposed but the information is, pursuant to s 404 of the Crimes Act 1900, dismissed.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 18 April 2005

Counsel for the Appellant: Mr P Bevan

Solicitor for the Appellant: Baker Deane and Nutt

Counsel for the Respondent: Mr J Lawton

Solicitor for the Respondent: Office of Director of Public Prosecutions (ACT)

Date of hearing: 16 December 2004

Date of judgment: 18 April 2005