Andrews v Thomson
[2018] ACTSC 199
•30 July 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Andrews v Thomson |
Citation: | [2018] ACTSC 199 |
Hearing Date: | 11 May 2018 |
Submission Dates: | 4 and 29 June 2018 |
DecisionDate: | 30 July 2018 |
Before: | Mossop J |
Decision: | The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – BAIL – Appeal – appeal from Magistrates Court – appeal against dismissal of charge – whether power to arrest for breach of bail permits entry of premises without warrant to effect arrest – legislative history of Bail Act 1992, s 56A considered – common law powers of entry excluded from present scope and operation of s 56A – no power to enter premises without warrant to arrest for breach of bail – no error in magistrate’s decision – appeal dismissed |
Legislation Cited: | Bail Act 1992 (ACT), ss 53, 56A Bail Act 1978 (NSW) Police Act 1927 (ACT) |
Cases Cited: | Foulkes v Coles [2017] ACTSC 178 Lippl v Haines (1989) 18 NSWLR 620 Taylor v Taintor, 83 US 366 (1872) |
Texts Cited: | ACT Law Reform Commission, Bail, Report No 19 (2001) BHK Donovan, The Law of Bail: Practice, Procedure and Principles (Legal Books, 1981) New South Wales Law Reform Commission, Bail, Report 133 (2012) |
Parties: | Brett Andrews (Appellant) Valentina Thomson (Respondent) |
Representation: | Counsel K McCann (Appellant) P Burgoyne-Scutts (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | SCA 93 of 2017 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Fryar Date of Decision: 8 December 2017 Case Title: Andrews v Thomson Court File Number: CC2017/3556 |
MOSSOP J:
Statement of the case
On 26 March 2017, two police officers went to the respondent’s home in order to arrest her for an alleged breach of bail. Section 56A of the Bail Act 1992 (ACT) permits a police officer to arrest a person without a warrant if the officer believes on reasonable grounds that the person has failed to comply with a bail condition. The respondent stepped outside the front door of the house and police told her that she was under arrest for a breach of bail. The respondent went back inside the house. Police followed her. Shortly after, while inside the house, the police applied physical restraint to complete the arrest. The respondent resisted that restraint and was charged with resisting a public official in the exercise of his functions as a public official contrary to s 361 of the Criminal Code 2002 (ACT).
At the hearing on 8 December 2017 a magistrate dismissed that charge. Her Honour held that that the police officer when arresting without a warrant a person for a breach of bail was not entitled to enter premises to complete the arrest. As a consequence, her Honour found that the police were not lawfully exercising their functions as police officers when they were inside the residence and hence the offence was not made out.
The appellant, who was the informant, has appealed against the dismissal of the charge. The issue raised on the appeal is whether the power in s 56A to arrest a person for a failure to comply with a bail condition permits the police officer to enter premises to effect the arrest. The appeal was argued on the basis of an acceptance of the magistrate’s finding that no arrest was completed outside the premises and that it was only completed at the time physical restraint was applied within the premises.
Prior to 1994, the powers of a police officer to arrest a person without a warrant for an offence were in similar terms as existed in New South Wales. The relevant statutory provision was interpreted in Lippl v Haines (1989) 18 NSWLR 620 as picking up the common law powers to enter upon premises in order to effect an arrest. As a consequence, the ACT provision would have been interpreted in the same way. At that time, it was certainly reasonably arguable that the separate power in the Bail Act, which permitted the arrest of a person who was believed to be in breach of a bail condition, should also be interpreted so as to pick up the common law powers of entry.
However, in 1994 the ACT Legislative Assembly enacted a package of provisions which dealt with arrest of persons believed to have committed offences and the arrest of persons believed to have breached bail conditions. That legislative package involved moving the power to arrest for breach of bail conditions from the Bail Act into the Crimes Act 1900 (ACT). At the time that these provisions were put into the Crimes Act the legislature specifically prescribed the powers of police to enter premises to effect an arrest. Those powers related to arrest with or without a warrant where a person was believed to have committed an offence. Limitations on the offences in relation to which the powers existed and the circumstances in which the power could be exercised were also imposed. No express statutory power to enter premises was given in relation to arrest for breach of bail conditions. The integrated nature of these amendments together with the express but limited grant of powers to enter premises that did not extend to arrest for breach of bail meant that it was no longer open to interpret either the provisions for arrest for offences or the provision relating to arrest for breach of bail conditions on the basis that they picked up the common law powers of entry associated with the power of arrest.
In 2004, the statutory power to arrest for breach of bail conditions was moved from the Crimes Act back to the Bail Act. That move was simply for convenience and did not detract from the fact that it had been enacted as part of a package of legislation which specifically defined the circumstances in which a power of entry in order to effect an arrest existed.
As a consequence, because no express statutory power of entry was given in relation to arrest for breach of bail conditions, the present provision in s 56A of the Bail Act does not authorise entry onto premises in circumstances that would amount to a trespass. For this reason the magistrate’s decision was correct and the appeal must be dismissed.
The section
Section 56A of the Bail Act provides:
56A Arrest without warrant of person on bail
(1)This section applies if a person has been granted bail in the ACT, a State or another Territory.
(2)A police officer may arrest the person without warrant if the officer believes on reasonable grounds that the person—
(a) has failed to comply with a bail condition; or
(b) will not comply with a bail condition.
(3)The police officer must bring the person before a court as soon as practicable.
(4)The court may—
(a) for a person granted bail in the ACT—exercise the same powers in relation to bail as it has in relation to any other accused person in custody; or
(b) for a person granted bail in a State or another Territory—
(i)release the person unconditionally; or
(ii)grant the person bail subject to the conditions that the court considers appropriate; or
(iii)remand the person in custody for a reasonable time while a warrant for the person’s arrest is obtained from the State or other Territory.
(5)A release mentioned in subsection (4) (b) (i) does not affect the grant of bail in the State or other Territory.
Historical background
Bail generally
Bail has a long history, a useful summary of which is provided in BHK Donovan, The Law of Bail: Practice, Procedure and Principles (Legal Books, 1981) at 23-28.
Prior to the Bail Act, the grant of bail in the Territory was regulated by a mix of statutory and common law powers. The principal statutory provisions relating to bail were contained in various parts of the Magistrates Court Act 1930 (ACT). However, other provisions existed in the Children’s Services Act 1986 (ACT), the Domestic Violence Act 1986 (ACT), the Crimes Act and the Police Act 1927 (ACT). The statutory powers existed alongside the powers of the Supreme Court to grant bail which were recognised in R v Rochford; Ex parte Harvey (1967) 15 FLR 140.
Historically, bail laws placed significant reliance upon sureties who would be required to forfeit a sum of money if the accused person failed to appear when required for the purposes of the proceedings. The heavy reliance upon sureties as a means of securing attendance led to a critique of bail laws in the 1960s and 1970s because of the large number of persons being detained pending trial and the disproportionate impact of bail laws upon the poor who were less able to be able to provide an appropriate surety: New South Wales Law Reform Commission, Bail, Report 133 (2012) at [3.15]-[3.18] In 1976, the New South Wales Attorney-General established the Bail Review Committee and the subsequent enactment of the Bail Act 1978 (NSW) significantly reduced the emphasis upon money-based bail.
In the ACT, the Bail Act achieved a similar comprehensive reform of the law of bail as had occurred in New South Wales. It brought the various provisions related to bail in a number of Acts together in a single coherent scheme. The Minister made specific reference to the findings of the Bail Review Committee in the Explanatory Memorandum for the Bail Bill 1992 (ACT) and some of the provisions in the Bail Act were modelled upon provisions in the New South Wales Act.
Powers of surety
Prior to the Bail Act, the principal means of ensuring attendance at trial was through the use of sureties. A surety took responsibility for ensuring the attendance of the person at trial or risk forfeiting a sum of money.
The common law position in relation to such sureties was that they might seize the principal at any time and discharge themselves of their responsibility by handing the principal over to the custody of the law to be imprisoned unless a fresh grant of bail was made: Halsbury’s Laws of England, 1st ed, vol 9 at 323 fn (r). The Magistrates Court Act reflected that position by providing to sureties a power to apprehend the person granted bail. Section 81 of that Act provided:
… if the sureties bound by the recognizance have reasonable grounds for suspecting that the person will not voluntarily surrender herself or himself, they may, before the day so appointed, apprehend their principal and bring her or him before the Court or deliver her or him into the custody of the keeper of the gaol, or Superintendent of the remand centre named in the warrant of committal, as the case may be.
It also provided that a police officer could, “if required by the sureties”, assist them in the apprehension of the person on bail.
Section 81 did not use the language of arrest and did not expressly give a power to trespass in order to “apprehend” the principal. The authorities referred to in the passage from Halsbury’s do not indicate that the power extended to entitlement to trespass in order to seize the bailed person.
The appellant contended that the common law power of a surety to apprehend the principal extended to a power to commit trespass in order to do so. The appellant relied upon obiter dictum of Swayne J delivering the opinion of the majority of the United States Supreme Court in Taylor v Taintor, 83 US 366 (1872) at 371 where he said of the powers of sureties: “They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose.” The authority for this proposition may be traced back, via the decision of the Supreme Court of New York in Nicolls v Ingersoll, 7 Johns 145 (1810), to Sheers v Brooks (1792) 2 H Bl 120; 126 ER 463 in which Lord Loughborough said:
… when a party is bailed, the bail have a right to go into the house of the principal, as much as he has himself; they have a right to be constantly with him, and to enter when they please, to take him. And I see no difference between a house of which he is solely possessed, and a house in which he resides by the consent of another.
The parties did not refer to the decision in Sheers v Brooks and hence, no submissions were made as to whether the principle therein remained the law in relation to the powers of a surety in a criminal case immediately prior to the enactment of the Bail Act. For present purposes it is convenient to assume, consistently with Sheers v Brooks and the submission of the appellant, that the power to apprehend an offender under s 81 of the Magistrates Court Act or the common law included a power to trespass in order to achieve that apprehension.
Although the power in s 81 existed from the commencement of the Magistrates Court Act (as the Court of Petty Sessions Ordinance 1930 (ACT)), other provisions permitted arrest for breach of conditions of bail. From 1974, s 248B of the Magistrates Court Act permitted the issuing of a warrant for the arrest of a person in breach of a condition of a bail recognizance entered into and, from 1986, that section permitted the arrest of person for breach of such a condition without a warrant where the offence was a “domestic violence offence” as defined.
Legislative history from enactment of Bail Act 1992
In order to understand the present scope and operation of s 56A of the Bail Act, it is useful to trace its legislative history and also to examine the relationship from time to time between s 56A and the power of a police officer to arrest, without a warrant, a person who is believed to have committed an offence.
The law as at the enactment of the Bail Act
The Bail Act expressly abolished the right of a surety to arrest the accused person (s 56) and instead gave a power to a police officer to arrest a person who the police officer believed on reasonable grounds had failed to comply with a condition of bail or would not comply with such a condition (s 53(1)). Section 53 provided:
Apprehension of person admitted to bail
53. (1) Where a police officer believes on reasonable grounds that a person who has been admitted to bail subject to conditions—
(a)has failed to comply with a condition on which he or she was admitted to bail; or
(b)will not comply with a condition on which he or she was admitted to bail;
the police officer may apprehend the person without a warrant.
(2) A person who has been apprehended under this section shall be brought before the Magistrates Court as soon as practicable after he or she has been taken into custody.
It is notable that, in relation to persons granted bail in the ACT, this provision is to similar effect as s 56A is currently.
When the Bail Act was passed, the general power for a police officer to arrest a person without a warrant was that in s 352 of the Crimes Act:
Person in act of committing or having committed an offence
352. (1) Any person may, without warrant, apprehend:
(a)any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment or on summary conviction, under any law in force in the Territory; or
(b)any person who has committed an offence punishable by imprisonment for 5 years or more, being an offence for which she or he has not been tried;
and may:
(c)detain the person only for so long as is necessary and reasonable while the first-mentioned person arranges for the attendance of a police officer; or
(d)as soon as is reasonably practicable, take the person, and any property found upon the person, to a police officer.
Person suspected of having committed or of being about to commit offence
(2) A police officer may, without warrant, arrest a person for an offence against a law of the Territory if the police officer believes on reasonable grounds that:
(a)the person has committed or is committing the offence; and
(b)proceedings by way of summons against the person in respect of the offence would not achieve one or more of the following purposes:
(i) ensuring the appearance of the person before the court in respect of the offence;
(ii) preventing the continuation of, or a repetition of, the offence or the commission of some other offence;
(iii) preventing the concealment, loss or destruction of evidence of, or relating to, the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence to be given or produced in proceedings in respect of the offence;
(vi) preserving the safety or welfare of the person.
(2A) Where:
(a)a person has been arrested under subsection (2) in connection with an offence;
(b)before the person is charged with the offence, the police officer in charge of the investigation into the offence does not have, or ceases to have, reasonable grounds to believe that:
(i) the person committed the offence; or
(ii) holding the person in custody is necessary for achieving any of the purposes referred to in paragraph (2) (b);
the person shall forthwith be released from custody in respect of the offence.
Offender for whose arrest warrant has been issued
(3) Any constable may, although the warrant is not at the time in her or his possession, apprehend any person for whose apprehension for an offence a warrant has been issued, and take her or him, and any property found upon her or him, before a Magistrate to be dealt with according to law.
(4) Where a warrant has been lawfully issued for the apprehension of a person on any ground other than a charge for an offence, any constable may, although the warrant is not at the time in her or his possession, apprehend that person.
(5) In subsection (4), “warrant” includes a warrant of commitment.
In Lippl v Haines, subsections (1) and (2) of s 352 of the Crimes Act 1900 (NSW), which were in relevantly identical terms to those in the ACT Crimes Act (see Lippl v Haines at 631-632), had been interpreted as authorising conduct which would otherwise amount to a trespass for the purpose of making, or endeavouring to make, an arrest. Hope AJA wrote the principal judgment with which Meagher JA agreed. Gleeson CJ wrote a concurring judgment. Hope AJA said (at 630D-E):
It would perhaps be reasonable to assume that the power of police to enter premises uninvited to arrest a person in the house, and any limitations upon that power, would by now have been clearly established, either under the common law or by statute. Such an assumption turns out to be wrong. There is no New South Wales statute which deals with these matters in any comprehensive way, and a resolution of the position under the general law involves no little difficulty.
The position ultimately reached, as described in the headnote to the authorised report (at 620), is as follows:
If a police officer is authorised by the Crimes Act 1900, s 352 to arrest a person without warrant then, according to common law principles, it may be lawful for him to engage in conduct that would otherwise amount to a trespass for the purpose of making, or endeavouring to make, such an arrest. His conduct will be lawful where the entry is reasonably necessary for the purpose mentioned provided two conditions are satisfied. First, he must believe on reasonable and probable grounds, prior to entry, that the person he is seeking to arrest is on the premises. Secondly, save in exigent circumstances there must be a proper announcement prior to entry so that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force.
The effect of the judgment was to recognise that although there was nothing in the statute expressly authorising a trespass, it should be interpreted in the light of the common law which permitted entry in particular circumstances which included entry if a felony had been or was about to be committed: Lippl v Haines at 630E-F. The statutory provision permitting arrest broadened the scope of the police power of arrest beyond felonies. Hope AJA then reasoned that the section enlarged the common law power to arrest and hence was not simply a codification of the common law. However, a significant part of it simply restated the common law and in those circumstances Hope AJA observed (at 635D):
It is difficult to imagine that Parliament intended that a constable, in the exercise of these powers, did not have the same right to enter that he would have had had he been exercising his common law power to arrest.
The reasoning in the judgment of Hope AJA in Lippl v Haines makes it clear that the issue was whether the statutory power of arrest should be interpreted as carrying with it the common law powers that were associated with the common law power of arrest. That was resolved by reference to an imputed legislative intention. Having regard to the common legislative origin and the identical terms of the ACT version of s 352, the ACT version of the section would have been interpreted in the same manner as in Lippl v Haines, namely, picking up the powers of entry into premises, including entry by force if a demand to enter was made and refused.
Thus the position as at the commencement of the Bail Act was that the general power of arrest without a warrant for an offence was one which justified what would otherwise be trespass. In light of the interpretation given to s 352 in Lippl v Haines, there would be a good case for arguing that s 53 of the Bail Act should also be interpreted as incorporating into it the powers of entry that had been recognised by the common law. For reasons which will shortly become apparent, it is not necessary to finally decide whether this was so.
The 1994 amendments
A substantial change occurred in 1994 as a result of the passage of the Crimes (Amendment) Act (No 2) 1994 (ACT). That Act repealed both s 53 of the Bail Act and s 352 of the Crimes Act. It inserted Div 4 into the Crimes Act.
Following the amendments, the Crimes Act made provision for arrest without a warrant of persons who were in breach of their conditions of bail as well as persons believed to have committed offences. The relevant provisions were as follows:
Power of arrest without warrant by police officers
349W. (1) A police officer may, without warrant, arrest a person for an offence if the police officer believes on reasonable grounds that—
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve 1 or more of the following purposes:
(i)ensuring the appearance of the person before a court in respect of the offence;
(ii)preventing a repetition or continuation of the offence or the commission of another offence;
(iii)preventing the concealment, loss or destruction of evidence relating to the offence;
(iv)preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v)preventing the fabrication of evidence in respect of the offence;
(vi)preserving the safety or welfare of the person.
(2) Where—
(a) a person has been arrested under subsection (1) in connection with an offence; and
(b) before the person is charged with the offence, the police officer in charge of the investigation into the offence does not have, or ceases to have, reasonable grounds to believe that—
(i)the person committed the offence; or
(ii)holding the person in custody is necessary to achieve any of the purposes referred to in paragraph (1) (b);
the person shall forthwith be released from custody in respect of the offence.
(3) A police officer may, without warrant, arrest a person whom he or she believes on reasonable grounds has escaped from lawful custody to which the person is still liable in respect of an offence.
…
Power of arrest without warrant of person on bail
349Z. (1) A police officer may, without warrant, arrest a person who has been admitted to bail in the Territory, a State or another Territory, subject to conditions, if the officer believes on reasonable grounds that the person—
(a)has failed to comply with a bail condition; or
(b)will not comply with a bail condition.
(2) Where a police officer arrests a person under subsection (1), the officer shall cause the person to be brought before a court as soon as is practicable.
(3) Where a person is brought before a court under subsection (2), the court may—
(a)in the case of a person originally admitted to bail in the Territory—exercise the same powers in relation to the person in relation to bail (or dispensing with bail) as it has in relation to other accused persons in custody; or
(b)in the case of a person originally admitted to bail in a State or another Territory—
(i) release the person unconditionally;
(ii) admit the person to bail subject to such conditions as the court thinks fit; or
(iii) remand the person in custody for a reasonable time pending the obtaining of a warrant for the arrest of the person from the State or Territory in which the person was admitted to bail.
(4) A release referred to in subparagraph (3) (b) (i) does not affect the operation of the bail order or the conditions of the bail imposed in the other State or Territory.
…
Power to enter premises to arrest offender
349ZE. (1) Subject to subsection (3), if—
(a)an officer has, under a warrant, power to arrest the person for an offence; and
(b)the officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(2) Subject to subsection (3), if—
(a)an officer has the power under section 349W to arrest the person without warrant for an offence;
(b)the offence is indictable; and
(c)the police officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(3) A police officer shall not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the executing officer believes on reasonable grounds that—
(a)it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b)it is necessary to do so in order to prevent the concealment, loss or destruction of evidence relating to the offence.
(4) In subsection (3)—
“dwelling house” includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night. (Emphasis added)
The Explanatory Memorandum for Crimes (Amendment) Bill (No 3) 1994 (ACT) (which became the Crimes (Amendment) Act (No 2)) said in relation to s 352 (at 2):
This Division re-enacts powers of arrest without warrant by police and citizens currently at section 352 of the Crimes Act.
In relation to the Bail Act it said (at 34):
Sections 53 and 54 of the Bail Act 1992 have been repealed because they have been incorporated into section 349Z of this Act.
In relation to s 349ZE(2)-(3), the Explanatory Memorandum said (at 19):
Subsection 349ZE(2) provides that if a police officer has power under proposed section 349W to arrest a person without warrant for an indictable offence and the police officer believes on reasonable grounds that the person is on any premises he or she may enter the premises using reasonable force at any time, again subject to subsection 349ZE(3) for the purpose of searching for, and arresting, the person. At common law a police officer has power to enter premises to effect an arrest with or without the authority of a warrant. These provisions restrict that power in relation to arrest without warrant to indictable offences.
Subsection 349ZE(3) states the general rule that entry to domestic premises to effect arrest should not be conducted at night. It precludes a police officer entering a dwelling house (as defined) to arrest a person between 9 pm and 6 am on the following day unless the police officer believes on reasonable grounds that it would not be practicable to arrest the person either at the dwelling house or elsewhere, at another time or believes on reasonable grounds that it is necessary to prevent the concealment, loss or destruction of evidence. (Emphasis added)
Thus, although the Explanatory Memorandum referred to re-enacting s 352, the new provisions did substantially more than that. That is because instead of relying upon an inference that the provisions empowering the arrest of a person without warrant carried with them the entitlement to enter premises in circumstances that would otherwise be a trespass, the new provisions expressly stated and then significantly limited the power to enter premises. That was done by s 349ZE(2) which set out the circumstances in which a police officer may enter premises for the purposes of arresting a person. Section 349ZE(3) provided a further limitation on the circumstances when entry may be made into a dwelling house for the purposes of exercising that power. The Explanatory Memorandum made it unambiguously clear that the statutory provisions were intended to constitute a departure from the common law position. Having regard to the specification and qualification of the powers of entry in the new provisions, it would not be appropriate to interpret the powers of arrest in s 349W as picking up common law powers of entry because, in contrast to the position in Lippl v Haines, it could not be inferred that that was the legislature’s intention.
The existence of s 349ZE was also significant for the interpretation of s 349Z. It is notable that s 349ZE provided powers of entry in two circumstances. The first (addressed in s 349ZE(1)) was where the police officer had a warrant to arrest the person for an offence. The second (addressed in s 349ZE(2)) was where the police officer had power under s 349W to arrest the person without a warrant for an offence. Given that those were the only two circumstances in which the statute gave power to enter premises to arrest a person, it is tolerably clear that the legislature made a deliberate decision to not include a power in s 349ZE, or elsewhere in the new division, that would authorise entry onto premises in order to effect the arrest of a person who was in breach of a bail condition. It would be inconsistent with the legislative context in which s 349Z sits to interpret it as impliedly picking up common law powers of entry in circumstances where the legislature has specifically provided and qualified those powers in relation to other powers of arrest.
Renumbering
In 2001, the Crimes Legislation Amendment Act 2001 (ACT) renumbered the Crimes Act so that s 349W became s 212, s 349Z became s 215 and s 249ZE became s 220.
Repeal of s 215 (previously s 349Z) and enactment of s 56A
In 2004, s 215 was omitted from the Crimes Act by the Bail Amendment Act 2004 (ACT). That was a consequence of the ACT Law Reform Commission’s report on bail in July 2001 which recommended that s 349Z (and 349ZA which related to the issuing of warrants for the arrest of persons in breach of bail conditions who are outside the Territory) be retained but moved to the Bail Act (ACT Law Reform Commission, Bail, Report No 19 (2001) at [219]). The government response in June 2003 noted that s 349Z had been renumbered as s 215 but agreed with the substance of the recommendation providing:
Given that these provisions deal exclusively with bail, it is logical to move them to the Bail Act.
The deletion of s 215 from the Crimes Act was combined with the insertion of s 56A into the Bail Act. Section 56A has not been amended since.
The provisions of the Crimes Act dealing with arrest of persons without a warrant and the powers of entry associated with them have remained in very similar form to that when they were enacted in 1994. They currently provide (and at March 2017 provided):
212 Power of arrest without warrant by police officers
(1)A police officer may, without warrant, arrest a person for an offence if the police officer suspects on reasonable grounds that—
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve 1 or more of the following purposes:
(i)ensuring the appearance of the person before a court in respect of the offence;
(ii)preventing a repetition or continuation of the offence or the commission of another offence;
(iii)preventing the concealment, loss or destruction of evidence relating to the offence;
(iv)preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v)preventing the fabrication of evidence in respect of the offence;
(vi)preserving the safety or welfare of the person.
(2)A police officer may, without warrant, arrest a person for a family violence offence if the police officer suspects on reasonable grounds that the person has committed or is committing the offence.
(3)If—
(a) a person has been arrested under subsection (1) or (2) in connection with an offence; and
(b) before the person is charged with the offence, the police officer in charge of the investigation into the offence does not have, or ceases to have, reasonable grounds to suspect that—
(i)the person committed the offence; or
(ii)for a person arrested under subsection (1)—holding the person in custody is necessary to achieve any of the purposes referred to in subsection (1) (b);
the person shall forthwith be released from custody in respect of the offence.
(4)A police officer may, without warrant, arrest a person whom he or she suspects on reasonable grounds has escaped from lawful custody to which the person is still liable in respect of an offence.
(5)In this section:
family violence offence—see the Family Violence Act 2016, dictionary.
…
220 Power to enter premises to arrest offender
(1)Subject to subsection (3), if—
(a) an officer has, under a warrant, power to arrest the person for an offence; and
(b) the officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using the force that is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(2)Subject to subsection (3), if—
(a) an officer has the power under section 212 to arrest the person without warrant for an offence; and
(b) the offence is a relevant offence; and
(c) the police officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using the force that is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(3)A police officer shall not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the executing officer believes on reasonable grounds that—
(a) it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so to prevent the concealment, loss or destruction of evidence relating to the offence.
(4)In this section:
dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, where people ordinarily sleep at night.
relevant offence means—
(a) a serious offence; or
(b) an offence against any of the following:
(i)section 380 (Possession of offensive weapons and disabling substances);
(ii)section 381 (Possession of offensive weapons and disabling substances with intent);
(iii)the Criminal Code, section 321 (Minor theft).
This legislative history of the deletion of s 215 from the Crimes Act and its re-enactment as s 56A in the Bail Act is important because it illustrates that the separation of the provisions relating to arrest without a warrant for an offence and arrest without a warrant for a breach of bail occurred in 2004 simply as a matter of taxonomic convenience. While the legislature had seen it appropriate in 1994 to group together all of the provisions relating to arrest and search in the Crimes Act, by 2004 it considered it appropriate to have all of the provisions relating to bail, including those relating to arrest for breach of bail conditions, in the Bail Act. That reorganisation did not reflect any substantive change in the law and the legislative history serves to demonstrate that in relation to s 56A of the Bail Act and ss 212 and 220 of the Crimes Act, it is appropriate to interpret their scope as if they formed part of a single legislative scheme rather than separately enacted provisions in relation to which their different legislative histories might shed different light upon their proper interpretation. Section 56A should be given the same interpretation as would have been given to s 215 of the Crimes Act prior to its repeal, namely, that it did not pick up the common law powers that existed in relation to arrest and which had been previously picked up by s 352 of the Crimes Act 1900 (NSW) and, most probably, of the ACT Crimes Act.
This is the same conclusion as to the scope of s 56A of the Bail Act as that tentatively reached by Murrell CJ in Foulkes v Coles [2017] ACTSC 178 at [24]-[25].
As a consequence, the magistrate was correct in concluding that s 56A of the Bail Act did not authorise entry to premises without the consent of the owner for the purposes of arresting a person believed to have failed to comply with a bail condition. This means that her Honour was correct in ruling as she did and the appeal must be dismissed.
Orders
The order of the Court is: The appeal is dismissed.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 30 July 2018 |
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