Andrews v Thomson - [2018] ACTSC 199

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) Children’s Services Act 1986 (ACT) Court of Petty Sessions Ordinance 1930 (ACT) Crimes Act 1900 (ACT), ss 212, 215, 220, 349W, 349Z, 349ZE, 349ZE(1), 349ZE(2), 349ZE(3), 352, Div 4 Crimes Act 1900 (NSW), ss 352(1), 352(2) Crimes (Amendment) Act (No 2) 1994 (ACT) Crimes Legislation Amendment Act 2001 (ACT) Criminal Code 2002 (ACT), s 361 Domestic Violence Act 1986 (ACT) Magistrates Court Act 1930 (ACT), ss 81, 248B Police Act 1927 (ACT)
Cases Cited:	Foulkes v Coles [2017] ACTSC 178 Lippl v Haines (1989) 18 NSWLR 620 Nicolls v Ingersoll, 7 Johns 145 (1810) R v Rochford; Ex parte Harvey (1967) 15 FLR 140 Sheers v Brooks (1792) 2 H Bl 120; 126 ER 463 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) Explanatory Memorandum, Bail Bill 1992 (ACT) Explanatory Memorandum, Crimes (Amendment) Bill (No 3) 1994 (ACT) Halsbury’s Laws of England, 1^st ed, vol 9 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrews v Thomson

Details

AGLC: Andrews v Thomson [2018] ACTSC 199
Case: [2018] ACTSC 199
Decision Date: 30 July 2018

CaseChat Overview and Summary

In the case of Andrews v Thomson, the appellant, Andrews, appealed against the decision of the Magistrates Court which dismissed a charge against him for breach of bail. The dispute centered around the power of the police to arrest the appellant for breach of bail by entering his premises without a warrant. The appeal was heard in the Supreme Court of the relevant jurisdiction.

The primary legal issue before the court was whether the power to arrest someone for breach of bail under section 56A of the Bail Act 1992 permits police officers to enter premises without a warrant to effect such an arrest. The court had to examine the legislative history and the scope of section 56A to determine whether the common law powers of entry were excluded from its operation. It was crucial to ascertain whether the statute provided an independent power to enter premises without a warrant for the purpose of arresting someone for breach of bail.

The court examined the legislative history and the language of section 56A and concluded that it did not provide an independent power to enter premises without a warrant to arrest for breach of bail. The court found that the common law powers of entry were excluded from the scope and operation of section 56A. Consequently, the court held that there was no error in the magistrate's decision to dismiss the charge against the appellant and dismissed the appeal. The reasoning was that the statutory provision did not extend to allowing warrantless entry for the sole purpose of executing an arrest for breach of bail.

The appeal was dismissed, and the decision of the Magistrates Court was affirmed. The court's reasoning confirmed that the police do not have the power to enter premises without a warrant to arrest someone for breach of bail under the relevant statute.

Orders

Orders of the court

The appeal is dismissed.

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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