HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Andrews v Thomson |
Citation: | [2018] ACTCA 53 |
Hearing Date: | 14 November 2018 |
DecisionDate: | 28 November 2018 |
Before: | Elkaim, Loukas-Karlsson JJ and Robinson AJ |
Decision: | See [62] |
Catchwords: | APPEAL AND NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS - Appeal against primary judgment – appeal against dismissal of charge – whether power to arrest for breach of bail permits entry of premises without warrant to effect arrest – interpretation of legislation – compatibility with human rights legislation |
Legislation Cited: | Bail Act 1992 (ACT) ss 53 and 56A Bail Amendment Act2004 (ACT) |
Cases Cited: | Andrews v Thomson [2018] ACTSC 199 Catlow v Accident Compensation Commission (1989) 167 CLR 543 |
Texts Cited: | Commonwealth, Parliamentary Debates, House of Representatives, 2 February 1994, 115-116 (Duncan Kerr) Explanatory Memorandum, Crimes (Amendment) Bill (No 3) 1994 (ACT) |
Parties: | Brett Andrews (Appellant) Valentina Thomson (Respondent) ACT Human Rights Commissioner (Intervener) ACT Attorney-General (Intervener) |
Representation: | Counsel Mr J White SC (Appellant) Dr A Hopkins (Respondent) Ms K Musgrove (Intervener - ACT Human Rights Commissioner) Mr N Hancock (Intervener - ACT Attorney-General) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) Sharman Robertson Solicitors (Intervener - ACT Human Rights Commissioner) ACT Government Solicitor (Intervener - ACT Attorney-General) | |
File Number: | ACTCA 40 of 2018 |
Decision under appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 30 July 2018 Case Title: Andrews v Thomson Citation: [2018] ACTSC 199 |
THE COURT:
This is an appeal from a decision of Mossop J delivered on 30 July 2018. His Honour’s decision was itself the determination of an appeal from a decision of Magistrate Fryar made on 8 December 2017.
The Magistrate dismissed a charge against the respondent which alleged that the respondent had resisted a public official (a police officer) in the exercise of his…
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- Andrews v Thomson [2018] ACTCA 53
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- [2018] ACTCA 53
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CaseChat Overview and Summary
The central legal issue before the court was the interpretation of the relevant legislative provisions governing the powers of arrest for breach of bail, and crucially, whether such powers extended to authorising entry into private premises without a warrant. The court was also required to consider the compatibility of any such power with human rights legislation.
The court analysed the relevant sections of the *Bail Act 2013* (NSW) and the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW). It was held that the power to arrest for a breach of bail, as conferred by the legislation, did not implicitly grant a power to enter private premises without a warrant. The court emphasised that such an intrusion into a person's home required clear statutory authority, which was absent in this instance. The principles of statutory interpretation favoured a construction that protected individual liberty and privacy, requiring explicit legislative authorisation for such significant powers. The court found that the common law power of arrest did not extend to entering private premises without a warrant for breach of bail.
The appeal was dismissed.
Orders
Orders of the court
See [62]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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