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Arnesto v Hickman

Arnesto v Hickman

Case [2016] TASSC 26 31 May 2016

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[2016] TASSC 26

COURT: SUPREME COURT OF TASMANIA

CITATION: Arnesto v Hickman [2016] TASSC 26

PARTIES:  ARNESTO, Lavina Mario
  v
  HICKMAN, Genevieve (Sergeant)

WILKIE, Scott (Senior Constable)

FILE NO:  380/2015
DELIVERED ON:  31 May 2016
DELIVERED AT:  Hobart
HEARING DATE:  26 April 2016
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Fail to state name and address – Error of law – Meaning of requirement – Police officer must convey legal obligation to provide details and reason for the obligation.

Police Offences Act 1935 (Tas), s 55A.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  F Cangelosi
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Simmons Wolfhagen
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 26
Number of paragraphs: 59

Serial No 26/2016
File No 380/2015

LAVINA MARIO ARNESTO v SERGEANT GENEVIEVE HICKMAN,
SENIOR CONSTABLE SCOTT WILKIE

REASONS FOR JUDGMENT WOOD J

31 May 2016

Lavina Mario Arnesto pleaded not guilty to a charge of fail to state name and address contrary to s 55A of the Police Offences Act 1935, and a charge of assault a police officer contrary to s 34B(1)(a)(i) of the same Act. After a hearing before Magistrate Rheinberger, the charges were found proved and convictions recorded.
The charges arose from an incident that occurred at approximately 8.50pm on 9 January 2015 at the Caldew Park, known as "the Train Park", on the corner of Hill and Warwick Streets in West Hobart. Police officers, Senior Constable Verney and Constable Lobb, attended the park because a woman was said to be causing a disturbance. Their observations were that a woman, who was not known to them, appeared intoxicated. Later on, the police officers discovered that the woman's name was Lavina Mario Arnesto. She was staggering, slurring her words and she smelt of alcohol.

Senior Constable Verney spoke to her and requested her name and address. Ms Arnesto refused to provide that information.
The police officers spoke to a family at the park having a barbeque. A member of the family had called police because Ms Arnesto had been verbally abusive and had been hugging people against their wishes. Another family had left the park because she had been harassing them. Senior Constable Verney gave evidence that, based on this information and her observations of Ms Arnesto, she believed that Ms Arnesto had committed an offence of disorderly conduct.
Ms Arnesto was again asked to provide her name and address; she refused.
The learned magistrate's findings regarding aspects of the exchange between Ms Arnesto and the attending police officers are set out below. In essence, the learned magistrate accepted that Senior Constable Verney told Ms Arnesto that she was required to provide her name and address. She was warned that if she did not provide her details that that would result in her arrest.
Ms Arnesto continued to refuse to provide her details and she was arrested for failing to state…

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 Arnesto v Hickman

Details

AGLC: Arnesto v Hickman [2016] TASSC 26
Case: [2016] TASSC 26
Decision Date: 31 May 2016

CaseChat Overview and Summary

Arnesto v Hickman was an appeal in the Tasmanian Magistrates Court. Arnesto appealed a conviction for failing to provide their name and address when required by a police officer. The legal issue was whether Arnesto's conviction was valid given they were not informed of the reason for the obligation to provide their details. The court had to determine the correct interpretation of the relevant statutory provision.

The court found that the primary consideration was whether Arnesto was given an opportunity to understand their legal obligation. The court held that the requirement in the legislation for the police officer to convey the reason for the obligation was mandatory. The court found that Arnesto was not informed of the reason for the requirement, thus rendering the conviction invalid. The court concluded that there was an error of law in the original decision, as the requirement to inform the individual of the reason was not satisfied.

The appeal was allowed, and the conviction was quashed. The court ordered that Arnesto be discharged without conviction. The court further noted that the police officer must ensure that the individual is informed of the reason for the obligation to provide their details.

Orders