Police discretion: public nuisance and the CMC Review of the Queensland Police Service’s Palm Island Review
I would like to comment more on the QPS, Mulrunji, the CMC report and public nuisance offences but time does not permit. So here are a few brief, hurried thoughts….
The President of the Queensland Police Union, Ian Leavers, wants more “offenders” to spend time in a watchhouse. To make such a statement was not only stupid, but insensitive and offensive only a week after the latest findings into the death of Mulrunji were released. It is stupid for at least two reasons. How is that prison population recidivism rate going, Ian? With around two out of three returning to prison, it’s really not going too well. That deterrence thing is not really working, is it? The second reason is that it is very stupid for Ian to call a person charged with an offence an “offender” and decide that the individual needs to be taught a lesson with a stint in the watchhouse. I thought that one’s innocence or guilt was decided through a court process, but I guess the police can decide these things.
Anna Bligh must agree as she has decided to give the police new powers to issue on the spot fines for a public nuisance offence, like swearing in public. This announcement came the day before the Crime and Misconduct Commission handed down the CMC Review of the Queensland Police Service’s Palm Island Review to parliament today. Mulrunji died in 2004 as a result of being arrested by Chris Hurley. He was arrested for being a public nuisance. What a difference it may have made if Mulrunji had been issued an on the spot fine instead. The terrible thing is that while Mulrunji could not have received an on the spot fine at the time, he could have been issued a notice to appear. There was no need for him to be arrested and spend time in a watchhouse. Chris Hurley used his discretion and decided to arrest Mulrunji ignoring the recommendation of the Royal Commission into Aboriginal Deaths in Custody that an arrest should only be made as a last resort.
The potential for a police officer to abuse their discretion (more than they do currently for this offence) is the reason they should not be given further power to issue an on the spot fine for swearing or any other public nuisance offence. Then again it may be safer to receive a fine, avoid the watchhouse, and contest the matter later in court…
OzPolitik 
Punishment i.e. time in the watchouse is not for police to administer but for the courts says Ken Mackenzie.
Can we trust the discretionary powers of the police?
After Ian Leaver’s failure to report his fellow officer’s ‘sex tryst with a stripper in a police vehicle’, he was ‘reprimanded’!
Is this cautionary note enough for him or should he spend some time in the watchouse to deter him from future offences of non-disclosure?
I can’t agree with many of the comments you make here.
Firstly, I agree the comments by Ian Leavers were stupid and not necessary. I agree that courts decide on guilt and the non-judicial form of punishment he is advocating provides an unnecessary burden on watchhouse police and further chance for the tragic results like that in the Doomagee case. These should be avoided. Arrest should be a last resort and the use of NTA and infringement notices are a welcome tool. But having done the job I can assure you that when arresting a person for public nuisance offences arrest is generally the preferred option because the person is intoxicated, abusive and leaving them their with a piece of paper will not solve the problem. It just leaves the problem for others (nightclub staff, community members ect ) to solve or deal with.
The issue of infringement notices was not done out to circumvent the judicial process as you seem to allege. It was done by Government to free up the court from dealing with these matters. Cynically, you could even say it was done to provide greater certainty over a revenue stream for the Government. As Magistrates often provide verying levels of fine from $0 to $600’ish. The person issue a notice can still elect to go to court if they feel aggrieved by the police officer.
On your point about the police abusing their discretion what facts do you have to support this. Is it purely anecdotal or can you point to the figures of findings of not guilty on this type of charge. I think the cases you refer to about the arrest for socks is well made. This was a disgraceful matter and was rightly discontinued. But to say that most police abuse their powers and discretion is wrong, inflammatory and disrespectful of a lot of hard working police.
I welcome your thoughts.