Unlawful Arrest

At the Maroochydore Magistrates Court on 7 July 2017, Magistrate Wilkinson ruled that the arrest of Ivan Bortic was unlawful, due to the fact that the arresting police officer had failed to afford the mandatory safeguard warnings under the Police Powers and Responsibilities Act (PPRA). Earlier media reporting that Mr Bortic was avoiding an RBT was false. His offence stemmed from a refusal to provide his drivers licence only, which was found in his wallet a short time later. The further charges related to drink driving were added after he was arrested and taken to the watch house. Aside from the issue of the initial unlawful arrest, the requirements were put to Mr Bortic in circumstances where he could not have been guilty of those offences.

Mr Bortic was intercepted due to the fact that he was displaying plates that were not legitimate. Having been intercepted, Mr Bortic was given a direction to provide his drivers licence under s 58 of the PPRA. He was not intoxicated and displayed no indicia that would give rise to a view that he should have been breath tested, notwithstanding that the power to make such a requirement does not rely on indicia. Mr Bortic’s understanding of the constitutional law was well researched, and he engaged in a discussion with the intercepting officer about the law. This did not in practice protect him from police action that day. Under cross-examination the arresting officer conceded that he is trained to exercise patience, and he has to deal with citizens who do not understand the law. This did not occur. The safeguard provisions exist to protect all citizens. He was under no time constraints, and conceded he could have complied with the safeguards but didn’t because he thought he had. Despite this lack of practical reasons that might have justified not following the legislation, the officer did not afford Mr Bortic his fundamental legislated safeguard warnings.

The taking of a person’s liberty is a very serious thing, and the purpose of the Act includes “to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act (s 5). Wherever that person is driving, be it in Maroochydore or Brisbane, liberties should not to be taken away without strict compliance with the legislation that allows police to do so. The Court of Appeal in 2008 (Rowe v Kemper [2008] QCA 175) has reinforced the requirement to comply with s 633 of the PPRA. Nevertheless, the arresting officer didn’t, and maintained even at Court, that after reading the provision again, there were only some words different to what he said. That was plainly not the case, and body worn cameras provide an excellent opportunity to review the lawfulness of police action. We have seen the importance of Police activating these cameras, and the ramifications when they don’t. The recording of interactions with the police assists citizens to ensure their basic rights are not violated, and when they are, that there is a record. We are increasingly seeing however that the rights of citizens is violated, and it is on camera, but there is no acceptance of this fact – the citizen still gets prosecuted.

What followed was the adding of further charges at the Maroochydore Watch-house which were wrong in law, including fail to provide specimen of breath for analysis roadside (s 80(5A)(a) Torum) – which is aptly described as a roadside test, but which did not occur until after Mr Bortic was processed at the Watch-house. Further, he was charged with fail to provide a specimen of breath (s 80(11) Torum).

Mr Bortic was arrested and therefore detained unlawfully for several hours post arrest. Despite the fundamental nature of the safeguards, Mr Wilkinson would not be heard on costs, and described the defence as a flimsy one.

It was unnecessary to test the lawfulness of the further charges as the Magistrate had ruled that the initial arrest was not compliant with the law, and the Prosecutor offered no evidence on the remaining charges.

On Mr Bortic’s behalf, we successfully appealed the decision of Magistrate Wilkinson not to be heard on costs.