AN INTRUDER who broke into a major explosives factory wearing a gimp mask, a wetsuit and a dog collar has bizarrely escaped charges after a magistrate found police should have asked him why he was there.

Startled police arrested Anthony John Weston at Gladstone’s Orica explosives factory after he scaled a fence to get inside.

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One of the officers told a court Weston refused orders to lie down and instead silently raised an arm and pointed at police.

Weston also repeatedly refused to tell police his name and was charged with trespass and unlawfully entering a premises.

But Gladstone magistrate Penelope Hay dismissed the charges, finding police breached safeguard provisions by failing to ask Weston why he was in the factory.

Appalled police have lodged an appeal against the decision – the latest strange case to emerge in a Courier-Mail investigation into the state’s magistrates.

Documents lodged in the District Court as part of the police appeal show Weston scaled the fence at 10.30pm disguised in a full wetsuit, motorcycle armour, hiking boots, a studded dog collar and a leather gimp mask.

media_camera Gladstone magistrate Penelope Hay. media_camera A ‘gimp mask’ similar to that worn by the accused.

The factory is the world’s largest manufacturer of technical-grade ammonium nitrate and sodium cyanide.

Four Orica employees and two police officers gave evidence that Weston was found in the factory, and CCTV showed him scaling the fence.

Arresting officer Sergeant Mick Newell told the court Weston had been a menacing sight and refused his orders to get on the ground.

“This was a very high-risk situation and I was concerned for … my safety and my partner’s safety just by the way he was dressed and pointing at us and ... considering the location he was in.”

At the watchhouse, Weston refused to open his eyes and kept repeating: “If I can’t see you, this isn’t happening.”

Eventually he said: “If you say please, I’ll tell you my name.”

In court, he demanded to be referred to only as “The Witness” or “Jane Doe”.

Safeguard provisions require that, if practical, police must ask intruders why they are on a premises.

The prosecutor told the court it wasn’t reasonable for police to comply because of Weston’s demeanour.

But Ms Hay – appointed in 2013 by the then Newman government – found there was nothing preventing an officer from asking the questions.

She ruled that Weston had no case to answer on the charges, and police were also forced to drop a third charge of failing to provide his name.

The Courier-Mail reported on Saturday that police had lodged nine appeals against Beenleigh magistrate Joan White in the past two years – believed to be the most in the state.