Written by Peter CarterSeptember 26, 2014
As terror hysteria – fuelled for all its worth by media and politicians – grips the nation, a Supreme Court judge has issued a terse rebuke of the misuse by police of “extraordinary” arrest and detention powers they already possess.
The unlikely protagonist in the events that led to the lashing launched at Queensland police, is a reveler who allegedly urinated publicly in Brisbane’s Fortitude Valley nightclub precinct. Dominic Burke was detained on a Sunday evening in September 2007 but ran off after his arrest only to be re-apprehended with the aid of a member of the public.
He escaped again in handcuffs, this time across the four lanes of Ann Street traffic into an alleyway. He alleged after surrendering in the dead end alleyway that was a blindspot in the blanket CCTV coverage of the area, Senior Constable George Price “king hit” him in the face and pushed him to fall on his face, fracturing his nose.
When serving Price with his court claim at Charlotte Street police station as arranged, for the alleged assault in September 2010, he was arrested again by another officer (Harris) with Price’s assistance, purportedly in connection with the investigation of an unrelated offence.
Burke “resisted and protested verbally in foul language which did him no credit and attracts no sympathy”. Harris and Price twice “transitioned” him to the ground in different locations in the station.
The encounter was captured by audio recording.
He commenced further proceedings arising out of that arrest, alleging that it was unlawful in that it was not made for the stated purpose, namely investigating an assault at Iceworks Paddington on Melbourne Cup day in 2009.
The police charge against Burke for resisting that arrest was in fact dropped, once Harris’ evidence of the events was aired in the magistrate’s court prosecution hearing.
Both of Burke’s civil claims were heard by Judge Greg Koppenol over six days in the Ipswich District Court in August 2013 where Burke was self-represented.
Price contended there was no assault in the Valley 2007 incident, merely a tackle that on the evidence of a Police Academy instructor was the most “appropriate and reasonable action that could have been taken in the circumstances, notwithstanding that some risk of injury was involved”.
Burke’s injury claim for that incident was dismissed.
His Honour also dismissed the claim for wrongful arrest in 2010, ruling that it had been for the purpose of questioning over the Paddington incident and therefore permitted under the detention without charge provision in Police Powers and Responsibilities Act s 365 (2).
To appeal those rulings, a notice of appeal was required to have been filed on 16 September 2013 but his attempt at this was rejected by the court registry three days earlier, his notice not being in the proper form. An amended notice was eventually accepted on 21 October 2013.
Burke applied to the appeal judges for an extension of time for the late filing of his appeal and it was in that hearing that Justice David Jackson drew the allusion between police behaviour and the excesses of the Gestapo.
Burke’s appeal grounds included: “judicial bias in favour of the respondents”; another officer was a “paid, bought man” whose evidence should have been rejected; “a quick decision is not a good decision”.
The majority ruled that “in summary, none of the grounds of appeal ventured by Burke has any prospects of success” and refused leave to extend time to appeal they considered to have hopeless prospects.
Justice Jackson agreed with the majority that the application for the extension of time to lodge the appeal should be dismissed, but published a dissenting judgment to the extent that the 2010 arrest at the Charlotte Street police station involved a misuse of police power.
In his view, there was no evidence to support a finding that the arresting officer’s purpose was “for questioning the applicant or investigating the offence”, the necessary condition for an arrest under PPRA s 365 (2).
Rather, the evidence favoured the view that Harris‘s purpose was to detain Burke simply to ascertain his address and give him a notice to appear.
Justice Jackson was of the view that because the extraordinary terms of s 365 abrogate the common law right of habeas corpus requiring prisoners to be promptly brought before a court after arrest – and allows detention without charge – the power must be strictly construed.
The officer was not entitled to rely on the power merely to ascertain Burke’s address or to make more it convenient for the service of process. Such measures could not constitute “an investigation” into the alleged crime.
Harris already had adequate powers under PPRA s 40 – without arrest – to require Burke to provide his address.
“Although even the Gestapo’s misdeeds may have faded from the consciousness of contemporary Australia, our tolerance of methods of arrest for the purpose of investigation or questioning,” Jackson warned, “requires that the limits of the proper exercise of such power are not lost in hollow lip service to or rote incantation of the purposes for which an arrest can be made.”
Justice Jackson’s caution echoed the dire warning made 70 years earlier by NSW chief justice Sir Frederick Jordan, in his advocation against allowing police the additional powers they now possess. In a climate where citizens are being daily urged to welcome ever-increasing discretionary state power to “trench upon their liberty at common law”, this is timely advice indeed.
His Honour went to pains to specify that his dismissal of Burke’s application for other reasons, “should not be seen as an endorsement” of the misuse of the extraordinary police power of detention without charge.
Burke v State of Queensland & Ors  QCA 200 Fraser and Gotterson JJA and Jackson J 22/08/2014 – view decision