Arnold v Police No. Scciv-04-118

[2004] SASC 74

ARNOLD v POLICE
[2004] SASC 74

Magistrates Appeal

1. VANSTONE J: Michael William Arnold appeals against his conviction in the Magistrates’ Court for assaulting a police officer in the execution of his duty and resisting a police officer in the execution of his duty, both offences against s 6 of the Summary Offences Act 1953.  Both are summary offences.  The trial took place over several days in the Adelaide Magistrates’ Court and on 4 December 2003 the appellant was convicted and fines were imposed.  Detailed reasons were given in support of the decision to convict.

2. The relevant events of the evening were proved before the learned Magistrate by the evidence of the four police officers.  The appellant did not give evidence upon his trial.  The following account is taken from that evidence insofar as it was accepted by the Magistrate.

3. The events giving rise to the charges occurred on 9 February 2002 at private premises at 25 Cullford Avenue, Klemzig.  Earlier that evening police had been called to nearby house premises at 29 Cullford Avenue where they took a complaint of assault from a young woman, Ms Green.  She identified the offender as a person called “Mick” who could be located at her mother’s house at 25 Cullford Avenue. 

4. The police officers called for the assistance of another patrol and in due course officers now numbering four approached a group of people standing within the garden area of number 25.  One of the police officers, Senior Constable McManus, asked the group if a person by the name of Mick was present.  A man identified himself.  At the request of McManus he moved away from the group slightly and a conversation occurred.  The man, identified in court as the appellant, told McManus he would not be leaving the yard and that if police wanted to speak with him they would have to do it there. 

5. Another officer, Constable Broad, then began to speak with the appellant, informing him that Ms Green had alleged an assault by him upon her.  He denied assaulting Ms Green, saying that she was a liar.  Constable Broad then put to him that the assault had occurred after an argument between Ms Green and her former partner, a man called Chisari.  The appellant responded that Mr Chisari had threatened him at a phone box at a delicatessen on a nearby street.  He added that he wasn’t going to let that [incident] go.  He turned more than once towards the direction of number 29 Cullford Crescent to yell:  “She’s a … liar”.  In the course of the interchange he repeatedly swore.  Constable Broad then said to the appellant:  “It’s an offence to use offensive language.  Can you please refrain from using that language”.  She asked him to keep his voice down.

6. Constable Broad then advised the appellant that he was under arrest for assault.  The Magistrate specifically found that the arrest was for the assault (on Ms Green) and that Constable Broad said as much when effecting it.  At that point the appellant took several paces backwards.  He was holding a beer bottle in his hand.  Senior Constable McManus reiterated to him that he was under arrest.  The appellant then took up an aggressive stance and attempted to hit McManus.  There was a struggle between them and the appellant was restrained and removed from the premises.

7. Upon the appeal various grounds were taken.  A ground which asserted that the arresting officer, Constable Broad, did not have a sufficient basis for an arrest was abandoned at the hearing.  Plainly the officer had sufficient information to amount to reasonable cause to suspect the appellant of committing an offence.  Then it was argued that there was no proof that the officers were acting in the execution of their duty at the time of the alleged offences.  As a corollary of that contention it was argued that the Magistrate should have found no case to answer.  A further ground added by leave at the hearing complained that insufficient reasons were provided by the Magistrate. 

8. I turn then to the main issue. 

9. It was contended that for at least part of the time the police officers were present at 25 Cullford Avenue they were or became trespassers.  In my view the learned Magistrate was correct in finding that the police had an implied licence to enter those premises and to remain there until such time as they were asked to leave:  Halliday v Nevill (1984) 155 CLR 1; Plenty v Dillon (1991) 171 CLR 635; Coco v The Queen (1994) 179 CLR 427. That licence enabled the police to enter the property for the purpose of questioning the appellant – himself a visitor there – in relation to the allegations made by Ms Green: Halliday v Nevill per Gibbs CJ, Mason, Wilson and Deane JJ at 6-9. The police were not required to obtain the permission of the occupier to enter the property: Halliday v Nevill (supra).  That permission extended, in my opinion, to allowing the police to effect an arrest.  At no time were the police officers asked to leave the premises by the occupier;  nor indeed by anyone else. 

10. However it was further put that in advising the appellant that it was an offence to use offensive language, Constable Broad acted unlawfully and that such unlawfulness triggered the revocation of the implied licence that she and the other officers had.  It followed, so the argument ran, that from that point the police were trespassers and that their further actions were necessarily other than in the execution of their duty.  In support of that contention counsel referred to Halliday v Nevill and R v Barker (1983) 153 CLR 338, the latter case being concerned with express permission to enter premises.

11. I do not think the applicable principles are in doubt. There are of course limits to the extent to which the courts will imply permission to enter and remain on private property. But I do not consider that Constable Broad’s conduct could be seen to have breached any such applicable limits. Throughout, her aims were entirely consistent with her duty to investigate the complaint of assault and to maintain the peace. It is at least arguable that in raising his voice to yell in the direction of the complainant’s residence and in employing the words he did – which I have not set out – the appellant committed an offence against s 7 (Using Offensive Language) or s 22 (Using Profane Language) of the Summary Offences Act 1953. The Magistrate found that the officer was wrong in implying that the appellant was committing the offence of offensive language, because at that time he was not in a public place. I do not think it is necessary to grapple with the question of what precisely an offence against s 7 of the Summary Offences Act 1953 requires by way of proof.  The appellant was not charged with such an offence and so no attempt to gather the evidence necessary to prove it was made.  What I consider is clear is that even were Constable Broad incorrect in her statement to the appellant, that would not have the effect of negating or rescinding her implied licence to be on the premises and nor would it render the balance of her conduct whilst there unlawful. 

12. That conclusion is essentially one of judgment.  Counsel did not refer to any authority directly in point.  Generally speaking an arrest is not necessarily vitiated by reason of the fact that the arresting officer mistakes his power to effect it or misdescribes the offence for which it is made:  Christie v Leachinsky [1947] AC 573; Warke v Daire (1983) 32 SASR 321. But here, as I mentioned, the impugned words were not associated with an arrest, but were rather in the nature of a warning to the appellant to desist from yelling in a particular manner. In my opinion that finding leads to the result that the Magistrate’s conclusion that both Constable Broad and Senior Constable McManus were acting in the execution of their duty at the time of the respective offences was correct.

13. Next the appellant contended that the Magistrate erred in finding a case to answer on both counts.  The same argument was used in support of this ground, namely that the element, common to both counts, that the relevant officer had to be acting in the execution of duty was not made out.  This ground must fail for the same reasons as I have just set out.

14. By leave, an additional ground of appeal was added, to the effect that the Magistrate gave insufficient reasons to justify his decision on the main points put by the defence.  There is a duty upon a Magistrate to give reasons in a contested matter.  Failure to do so is an error of law.  The extent of the duty is very much dependent on the circumstances.  However, the reasons given must be sufficient to demonstrate that justice is seen to be done and they must be adequate for the exercise of the facility of appeal:  Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Kirby J at 259, Mahoney and McHugh JJA agreeing on this point, although in separate judgments; Sun Alliance Insurance v Massoud [1989] VR 8 per Gray J at 18; Lawson v Lee (1978) 19 SASR 442 (Full Court); Papps v Police (2000) 77 SASR 210 (Full Court); Harwood v Police (1998) 71 SASR 300 per Duggan J.

15. In the reasons he gave, the learned Magistrate set out the conversation between Constable Broad and the appellant which was said to vitiate what followed.  The Magistrate found that Constable Broad was “incorrect in categorising the defendant’s language as an offence” and said:  “Nevertheless, effectively she drew his attention to his language, asking him to refrain from using it and to lower his voice”.  Plainly he did not consider that the officer’s error rendered unlawful what followed.  His Honour dealt with the contention that the police were, or became, trespassers upon the premises.  He referred to Plenty v Dillon (supra) and he found that the police had an implied licence to enter the premises which was not revoked.  He found that the arrest was based on proper grounds.  In my view the reasons given cannot be said to be other than adequate.  It was not as if the appellant could point to any authority which directly supported him;  nor could it be said, in my view, that the position was finely balanced.  This ground of appeal must also fail.

16. In my view none of the grounds of appeal are made out.  The appeal must be dismissed.  Accordingly my orders are:

    1.     time within which to appeal is extended to 16 January 2004;

    2.     appeal dismissed.