Police didn't ask intruder what he was doing
POLICE were confronted by a weird sight when they grabbed a late night intruder at a Yarwun explosives factory.
The man found inside chemical manufacturing giant Orica Pty around 10pm on February 8 last year was clad in a menacing leather bondage gimp mask, studded dog collar, motorcycle armour and a full wet suit.
At the time Anthony John Weston, 44, refused to answer any police questions about his name and Sgt Mick Newell arrested him.
CCTV footage from Orica appears to show Weston in mask and wetsuit climbing over the fence.
Sgt Newell described the confrontation as "a high risk situation" stating had been concerned for his safety and that of partner Snr Const Whitehead.
But charges of trespass and unlawfully entering premises against Mr Weston were later dismissed by Gladstone magistrate Penelope Hay on the basis police had not complied with legal safeguards by not asking the masked intruder as to why he was there.
Sgt Newell lodged an appeal with the District Court about the lower court decision.
Appeal Judge Fleur Kingham yesterday dismissed the police appeal and upheld magistrate Hay's decision, finding she had made no error of law.
Judge Kingham found the reason for the decision had been the magistrate's finding of a lack of evidence from police witnesses about their compliance at the arrest scene under the Police Powers and Responsibilities Act.
Her Honour said the charge of Trespass meant certain "safeguards" had to be followed and a suspect person must be given the opportunity to explain why they were at or had entered the place.
Her Honour said magistrate Hay found that there was no evidence police had asked Mr Weston those questions, or about why they failed to do so.
Sgt Newell argued in his appeal that it was not reasonably practical (at the time of his arrest) to give Mr Weston an opportunity to explain his presence - a submission the court rejected.
"Given the repeated requests and warning prior to arrest, there is scant basis for the submission it was not reasonably practical for the officers to ask Mr Weston to explain his presence," Judge Kingham stated.
"There was nothing in the course of events that prevented an officer from asking Mr Weston those questions. He was not afforded the opportunity to decide whether or not to answer such questions."