News - Police Powers and Responsibilities Act "safeguard" provisions: an under-utilised device in the criminal lawyer's kitbag

In July 2014, the appeal decision of Bismark v Queensland Police Service [2014] QDC 152 was delivered in the District Court at Mount Isa.  It was an appeal against convictions, the appellant having earlier been found guilty in the Magistrates Court.

The occupants of a house in Mount Isa had called police in relation to someone trespassing in their yard, and tampering with their vehicle.

Mr Bismark was a young Indigenous male.  He was located walking along a footpath nearby the house.  He was wearing a Spider Man mask on top of his head.  When he was stopped by police he dropped a small piece of flattened garden hose.

After his transportation to the watch house, he was charged with two offences under the Summary Offences Act 2005 (Qld):

(1)    Trespass (for entering a yard); and

(2)    Possessing an implement that was to be used for entering a vehicle with intent to commit an indictable offence (for possessing the Spider Man mask and the flattened garden hose).

Before someone is charged with these, and certain other offences, under the Summary Offences Act 2005 (Qld), a police officer must give the person a reasonable opportunity to explain, for instance, why they were at a place, or why they were in possession of an implement.  This requirement is contained in s 634 of the Police Powers and Responsibilities Act 2000 (Qld).

If the police officer considers the explanation is not reasonable, then the police officer can start proceedings against the person.

Otherwise, proceedings can only be started if the person fails to give an explanation, or if the person’s conduct is such that it is not reasonably practicable to give the person a reasonable opportunity to give an explanation.

There was evidence at trial in the Magistrates Court was that when Mr Bismark was arrested, he smelled of petrol.  The implication being that he had been sniffing petrol and that the garden hose was to be used to siphon petrol.  The position of police was that he was not given an opportunity to offer an explanation because he was intoxicated.  The learned Magistrate at first instance had found that it was reasonable for the police officer not to have given Mr Bismark an opportunity to explain his whereabouts and what was in his possession.

However, Mr Bismark’s defence solicitor had, in the course of negotiations with police, secured CCTV footage and audio of Mr Bismark’s arrival at the watch house.  It depicted him walking steadily and unaided, and giving prompt and responsive answers to questions.  He took off his belt without difficulty, he was breathalysed without any issue, and he signed his name with ease.

Her Honour Bradley DCJ said (emphasis added):

… an individual in the position of [Mr Bismark], suspected of entering a yard or possession of an implement, should not be regarded as having committed the offences until the safeguard requirements of section 634 have been observed.[1]

Further on, Her Honour said (emphasis added):

The requirement to give a person suspected of committing offences [of Trespass and Possessing an implement] a reasonable opportunity to explain why they entered the place and why they were in possessing of the implements is a mandatory prerequisite to a police officer starting a proceedings against a person for those offences.[2]

After considering the disclosed CCTV footage and audio of Mr Bismark’s arrival at the watch house, Her Honour found that there was nothing in Mr Bismark’s conduct which made it not reasonably practicable to be given the opportunity to provide an explanation.[3]  It was found that police, not having given Mr Bismark the opportunity, should not have started proceedings against him.

As a result, his convictions were quashed and acquittals were entered.

Delightfully, the decision of Bismark v Queensland Police Service [2014] QDC 152, was later utilised in the decision of Newell v Weston [2015] QDC 158, where a ‘strangely attired’ man was found in a secure area of a chemical manufacturing plant.  By ‘strangely attired’ it was meant that he was caught wearing a wet suit, motorcycle armour, boots, a gimp mask, and a studded dog collar.  It was found that Mr Weston was properly acquitted of Trespass because police had not complied with s 634 of the Police Powers and Responsibilities Act 2000 (Qld).

Close attention should always be given to allegations in relation to summary offences outlined in QP9s.  Quite often defendants are charged without being afforded any ‘safeguard’.

Written by Michael Finch, Senior Associate, Criminal Law Division

email/michael)(oreillystevens.com



[1] Bismark v Queensland Police Service [2014] QDC 152, [19]

[2] Ibid [25].

[3] Ibid [26].