Barnes v Crossin - [2017] TASSC 61

[2017] TASSC 61

COURT: SUPREME COURT OF TASMANIA

CITATION: Barnes v Crossin [2017] TASSC 61

PARTIES:  BARNES, Alisha
  v
  CROSSIN, Mark Andrew

FILE NO:  LCA 427/2017
DELIVERED ON:  12 October 2017
DELIVERED AT:  Hobart
HEARING DATE:  17 August 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Procedure – Warrants, arrest, search, seizure and incidental powers – Arrest – Powers of arrest – Statutory powers – Arresting officer had reasonable suspicion that family violence occurred – Arrest was lawful.

Family Violence Act 2004 (Tas), ss 10, 11.
R v Lemsatef [1977] 1 WLR 812, distinguished.
George v Rockett (1990) 170 CLR 104; Winwood v McLaughlin [2001] TASSC 123; Johnson v Reeves [2004] TASSC 110, 13 Tas R 150, cited.

Aust Dig Criminal Law [2972].

Criminal Law – Procedure – Warrants, arrest, search, seizure and incidental powers – Arrest – Effecting arrest – Informing person arrested of fact and reason – Respondent told arrest was to "investigate family violence" – Notice given to respondent of cause of arrest – Arrest was lawful.

Aust Dig Criminal Law [2975].

Criminal Law – Appeal and new trial – Miscarriage of justice – Dismissal of appeal where no substantial miscarriage of justice – Application of proviso to particular cases – No basis for application of proviso – Matter remitted to same magistrate to complete hearing.

Aust Dig Criminal Law [3465]

REPRESENTATION:

Counsel:
             Applicant:  E Bill
             Respondent:  G Stevens
Solicitors:
             Applicant:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 61
Number of paragraphs: 52

Serial No 61/2017
File No LCA 427/2017

ALISHA BARNES v MARK ANDREW CROSSIN

REASONS FOR JUDGMENT BRETT J

12 October 2017

On 13 August 2015, the respondent was arrested by police at his house. The police had attended in response to a telephone call to the police radio room, which had reportedly emanated from a child in the house "saying his father had hit his mother". The arrest took place when the respondent refused to co-operate with police and, in particular, answer their questions as to what had taken place at the house. When one of the police officers purported to arrest the respondent, he struggled and resisted arrested. He was subsequently charged with offences which included resisting a police officer in the execution of his duty.
In making the arrest, the arresting officer purported to rely on powers arising under the Family Violence Act 2004 ("the Act"), in particular ss 10 and 11. Those provisions provide for arrest without warrant in various circumstances. The common basis for the exercise of the power of arrest is a reasonable suspicion on the part of the arresting officer that family violence has taken place.
At the hearing of the said charges, at the conclusion of the prosecution case, defence counsel submitted that there was no case to answer in respect of the resist police charge because, on the police evidence, taken at its highest, the purported arrest was not authorised by the Act and was therefore unlawful. Accordingly, it was submitted, the officers were not acting in the execution of their duty. Counsel relied in particular on some answers in cross-examination by the arresting officer, to the effect that he had arrested the respondent to investigate family violence. He also relied on the evidence of the officer that the reason given to the respondent as to why he was being arrested was to "investigate family violence". Counsel's submission was that there is no power to arrest a person to conduct an investigation.
The magistrate hearing the complaint, Magistrate Marron, accepted the submission and dismissed the charge. The respondent did not give evidence and was found guilty of the other charge, obstruct police. The respondent seeks a review of the decision to dismiss the resist police charge.

The evidence

The first officers to arrive at the house were Snr Const Barnes and Const Absolom. Snr Const Barnes said police went there because "there had been a call from a child at the residence saying his father had hit his mother". When they arrived, Snr Const Barnes saw female clothing strewn across the front yard and steps leading to the front door of the house. He said that this gave him "a belief that an incident had occurred at the residence in relation to family violence, which corroborated the initial call we were given".
The door was answered by the respondent. Snr Const Barnes observed a small cut on the respondent's eye which contributed to Snr Const Barnes' belief "that some type of family violence incident had occurred". The respondent was agitated and upset, and refused entry to the police. When the respondent started to close the door, Snr Const Barnes pushed the door open, and forcibly entered the house.
The police followed the respondent to his son's bedroom. The respondent asked his son if he had called the police, and his son responded with the words, "Yes, I did because I'm scared of being in the house with you alone." According to Snr Const Barnes, this caused the respondent to become "enraged".
After some further conversation, the respondent agreed to accompany the police outside to talk about what had occurred in the house. By the time they reached the front door, another two police officers, Consts Clews and Harris had come through the front door and were standing in the entry area. When the respondent saw them he said, "No, I'm not going anywhere you're going. You need to leave my house."
According to the evidence of Snr Const Barnes, the next thing that occurred was that Const Clews placed the respondent under arrest "for further investigation into family violence". When asked as to whether there was any conversation between the respondent and Const Clews at this point, Snr Const Barnes said, "No, just said 'you're under arrest' and went to arrest him and he went to push him away and just resisted arrest." There was then a struggle between the respondent and Const Clews. Snr Const Barnes went to Const Clews' assistance, and the respondent struggled with them both.
In cross-examination, Snr Const Barnes said that immediately before the respondent was arrested, Const Clews "might have looked past me and said 'Is he coming with us?' I said, 'yes'." Snr Const Barnes also conceded that he did not hear the word "arrest" used, but it was difficult to hear what Const Clews was saying because the respondent was yelling.
Snr Const Barnes' evidence was substantially corroborated by the evidence of Const Absolom.
Consts Clews and Harris were also asked to attend the house by the radio room. Const Clews' evidence was that he had been told that, "There was a young male in the house who had called saying that 'Dad was going off' and that he thinks that his mum's been hit." Const Clews also saw a number of items which included female clothing, a hair straightener and a purse strewn across the front yard and on the front porch. He knew that Snr Const Barnes and Const Absolom were already present and he could hear raised voices from inside the house. When they arrived at the front door, it was slightly ajar and they walked through into the hall. They could see Snr Const Barnes speaking with a male person, and a number of items strewn along the hallway. Const Clews noticed the respondent being argumentative towards Snr Const Barnes, and it was Const Clews' understanding that the female person was at the other end of the house. However, neither he, nor any other police officer, saw a female in the house at any time that night.
Const Clews then heard Snr Const Barnes ask the respondent to come outside to talk "about what's gone on here tonight". At that point, Const Clews said that he "sort of raised an eyebrow, I suppose with saying more or less, you know, 'Is he coming with us or not?'" He said that Snr Const Barnes "indicated with a nod that the (respondent) was going to come with us". Const Clews then "explained to the (respondent) that some sort of incident has taken place, we needed to investigate it, and for the purposes of doing that, I told him he was under arrest, and I took him by the left arm". The respondent then physically resisted Const Clews and shortly thereafter Snr Const Barnes joined the struggle.
In cross-examination, Const Clews explained the belief that he had at the time of the arrest, as follows:
"When you purported to arrest Mr Crossin, what power were you exercising?……I was operating under the belief that any incident had taken place, a family violence related incident. That matter required investigation.
So you were arresting him for the purpose of investigation?……To an extent.
To what extent?……To the extent that we had some information that had been broadcast prior to arriving at the job, which was that there was the report from a third party that the father had assaulted the mother, or believed that the father had assaulted the mother. We arrived, and there was obviously the items of clothing and other evidence to suggest that some type of incident had occurred."
Const Clews also referred to his understanding that the Act authorised arrest where a police officer had a reasonable suspicion that family violence had occurred. He explained what he meant by the proposed investigation as follows:
"My understanding – if it's incorrect then obviously I need to be schooled, but my understanding is that if you have a reasonable belief, or a reasonable suspicion that family violence has, is, or is likely to have been committed, then you're duly bound to investigate that. Now, to thoroughly investigate something, you know, you need to obviously speak to your witnesses, in fact – you know, your alleged offenders and so on as well. So at that point in time the reason I did what I did is because there was information to suggest that an assault had occurred."
With respect to the question of what he told the respondent, Const Clews said:
"I told him that there was an incident that had occurred, and that we needed to investigate it, and that this was part of it. Okay? I told him that something had occurred between him and his wife, and that we intended to investigate it, and he needed to come with us. He wasn't free to go because we didn't know at that time whether someone had been assaulted or not. I can't turn up to a family violence incident and let someone just walk away when we haven't determined 100 per cent what has actually occurred. So if someone is not free to go, then you know, my opinion is that they're in your custody."
Const Harris also corroborated the evidence of the other police officers. She heard Const Clews inform the respondent that he was "under arrest for family violence".

The magistrate's decision

In order to understand the basis of the magistrate's brief ruling, it is necessary to consider the submission that was made to him. Defence counsel submitted that the only conclusion available from the evidence was that Const Clews had arrested the respondent in order to investigate whether or not family violence had taken place. Counsel conceded that an arrest would be lawful if there was "a belief that family violence had occurred", but that the reason given by the officer was to investigate family violence. Counsel relied on a passage from R v Lemsatef [1977] 1 WLR 812 at 816, in which it was held that it was not sufficient for an arresting officer to give as a reason for arrest that the arrestee is to help police with their inquiries. Ultimately, counsel submitted that there is no power to arrest somebody just to investigate whether or not family violence has taken place.
The magistrate, in substance, accepted this submission. His Honour considered the information that had been available to Const Clews and the actions that were taken by him. He concluded that, given that Const Clews was only there for a relatively short time before conducting the arrest, there was no opportunity for "the two initial officers to Const Clews to in fact arm him with any additional information such that he could reach the view that a family violence incident had occurred". The magistrate then noted that s 11 "specifically talks about arresting in relation to a family violence offence". His Honour concluded that there was no case to answer.
The necessary implication of his Honour's reasoning is that he has concluded that Const Clews was not acting in the execution of his duty, because he was not affecting a lawful arrest. As far as it goes, it is a reasonable proposition that a police officer is not acting in the execution of his duty if he is not authorised by law to conduct an arrest. A citizen, particularly within his own home, would be entitled to resist any attempt to forcibly take him into custody in circumstances in which the arrest is unlawful: Johnson v Staskos [2015] WASCA 32, 48 WAR 349.
However, the immediate difficulty with the magistrate’s reasoning is that the respondent was not charged with resisting Const Clews, but rather resisting Snr Const Barnes. Undoubtedly, the lawfulness of Const Clews' arrest was relevant to a consideration of whether Snr Const Barnes was acting in the execution of his duty when he was resisted by the respondent, but it is by no means determinative of this issue. If Snr Const Barnes, on the information available to him, was entitled to conclude that Const Clewes was acting lawfully by arresting the respondent, then he may well have been acting in the execution of his duty by providing assistance to him. This question does not appear to have been considered by the learned magistrate.
This point alone may be a sufficient basis upon which to find error with the magistrate's reasoning. However, the grounds of review squarely attack the magistrate's conclusion in respect of the lawfulness of the arrest by Const Clews. It is convenient, in my view, to first consider this question. If the evidence, taken at its highest on the prosecution case, established that Const Clews had acted lawfully when he purported to arrest the respondent, then it would be beyond argument that there was a prima facie case that Snr Const Barnes was acting in the execution of his duty when he went to assist with the arrest, and the magistrate was in error in dismissing the charge.

Power of arrest under the Family Violence Act

The Family Violence Act provides police with an array of broad powers in respect of family violence. These include the power to arrest in a variety of circumstances. This conferral of wide powers of enforcement is consistent with the objects of the Act expressed in s 3 as follows:
"In the administration of this Act, the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations."
The majority of powers conferred upon police are contained in ss 10 and 11. Section 10(1) provides:
"(1) A police officer may, without warrant, and using such force as is necessary, enter and remain on premises for such period as he or she considers reasonably necessary to prevent family violence —
(a) …
(b) if the officer reasonably suspects that family violence is being, has been or is likely to be committed on those premises."
Section 10(2) provides a power of arrest without warrant in order to facilitate the issue of a PFVO or the making of an application of an FVO. The balance of the section includes various wide powers of search and seizure. Section 10(7) provides as follows:
"(7) If a police officer reasonably suspects that a person has committed family violence, the officer, without warrant and using such force as is reasonably necessary in the circumstances, may —
(a) enter any premises on which the officer reasonably suspects the person may be found; and
(b) search those premises for the person; and
(c) arrest the person."
Section 11 provides complementary powers to those set out in s 10. It is convenient to set out s 11 in full:
"(1) Where a police officer reasonably suspects that a person has committed family violence, the officer may arrest that person without a warrant.
(2) Subject to subsection (4), a person taken into custody under this section or section 10 must be brought before a court as soon as practicable after being taken into custody unless released unconditionally or under section 34 of the Justices Act 1959.
(3) Subject to subsection (4) of this section, section 4 of the Criminal Law Detention and Interrogation Act 1995 applies to a person taken into custody under subsection (1).
(4) A police officer may detain a person taken into custody under subsection (1) for a period reasonably required to do any or all of the following:
(a) determine the charge or charges which should be laid in relation to the family violence;
(b) carry out a risk screening or safety audit;
(c) implement the measures identified by a safety audit where it is practical to do so;
(d) make and serve a PFVO or an application for an FVO.
(5) In deciding whether to arrest a person under subsection (1) , the police officer is to give priority to the safety, wellbeing and interests of any affected person or affected child."
A number of observations can be made concerning the power conferred by this section. Firstly, the ground of arrest is reasonable suspicion that the person concerned has committed family violence. Suspicion is a state of mind which is something less than belief or knowledge. In Winwood v McLaughlin [2001] TASSC 123, Evans J recited a passage from the judgment of Clarke J in Burnett v Brown (1929) 24 Tas LR 23 which related to the Police Act 1904, s 16:
"The words 'suspicion' and 'suspect' convey the idea of doubt and mistrust as much as belief, a doubting and mistrusting inclination to believe. The inclination may exist in various degrees according to the cogency of the evidence, but the idea of doubt and mistrust is always present."
In George v Rockett (1990) 170 CLR 104, the High Court was dealing with the authority of a justice to issue a search warrant, on the basis that "there are reasonable grounds for suspecting" a state of affairs. The court, in a joint judgment, said at [14]:
"14 Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam (1970) AC 942, at p 948, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove".' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay (its) debts as they became due' as that phrase was used in s95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at p 303):
'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which "reason to suspect" expresses in sub-s(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes – a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors'."
Further, the requirement that the suspicion be reasonable imputes a requirement that it be held on grounds which are objectively reasonable. As the High Court said in George v Rockett at [8]:
"When a statute prescribes that there must be 'reasonable grounds' for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person."

See also Samaukovic v Brown [1993] TASSC 78. The objective facts upon which the suspicion is based are those which were known to the police officer at the time of the purported arrest: Hibble v Phegan [1997] TASSC 52.
Under s 11, the suspicion which provides authority for the arrest is that the person being arrested "has committed family violence". "Family violence" is defined by s 7 of the Act as follows:
"family violence means —
(a)any of the following types of conduct committed by a person, directly or indirectly, against that person's spouse or partner:
(i)assault, including sexual assault;
(ii)threats, coercion, intimidation or verbal abuse;
(iii)abduction;
(iv)stalking within the meaning of section 192 of the Criminal Code ;
(v)attempting or threatening to commit conduct referred to in subparagraph (i) , (ii) , (iii) or (iv) ; or
(b) any of the following:
(i)economic abuse;
(ii)emotional abuse or intimidation;
(iii)contravening an external family violence order, an interim FVO, an FVO or a PFVO; or
(c) any damage caused by a person, directly or indirectly, to any property —
(i)jointly owned by that person and his or her spouse or partner; or
(ii)owned by that person's spouse or partner; or
(iii)owned by an affected child."
As is obvious from this provision, conduct which constitutes family violence may not necessarily involve the commission of an offence. This distinction is emphasised by s 4 of the Act which separately defines "family violence offence" and "family violence". By s 4, "family violence" has the meaning defined in s 7. However, "family violence offence means any offence the commission of which constitutes family violence".
Hence, an arrest may take place notwithstanding that the police officer does not suspect that an offence has been committed and does not intend to charge the person being arrested with such an offence. It is clear that the broad powers given to police authorise arrest for the purpose of facilitating proactive intervention by police in circumstances in which there is a reasonable suspicion that the person has committed family violence. Such intervention might include removing the person from the immediate environment, often the family home, to preserve the immediate safety of other family members and to facilitate a wide range of follow-up action. That action may include investigation as to whether an offence has been committed and, if so, charging the person with that offence. The broad ambit of the purpose of an arrest under this section is consistent with the legislative scheme contained within the Act. That scheme includes the following:
·Section 11(5) which provides that in deciding whether to arrest a person under subs (1) "the police officer is to give priority to the safety, wellbeing and interest of any affected person or affected child".
·Section 11(4) which provides that after arrest a person may be detained for a range of purposes defined as follows:
"(a)determine the charge or charges which should be laid in relation to the family violence;
(b)carry out a risk screening or safety audit;
(c)implement the measures identified by a safety audit where it is practical to do so;
(d)make and serve a PFVO or an application for an FVO."
· Section 11(2) and (3) which provide for a person to be brought before justices as soon as practicable, and also apply the provisions of s 4 of the Criminal Law Detention and Interrogation Act 1995. This section authorises detention for a reasonable time "for the purposes of questioning the person, or carrying out investigations in which the person participates in order to determine his or her involvement, if any, in relation to an offence."

Grounds of review

Ground 1 complains that the magistrate erred in law "by determining that s11(1) of the Family Violence Act 2004 requires an arresting officer to reasonably suspect that the person has committed a family violence offence". It is true that his Honour does say that s 11 "specifically talks about arresting in relation to a family violence offence". Taken literally, this is clearly incorrect. The ground of arrest is reasonable suspicion that family violence, as distinct from a family violence offence, has taken place. However, the overall context of his Honour's reasoning would suggest that this was a slip of the tongue. His Honour goes on to say that "the family violence as defined is broad". In the preceding paragraph, he notes that the question was the information available to Const Clews "such that he could reach the view that a family violence incident had occurred".
I am not satisfied that his Honour restricted his consideration to whether there was a reasonable suspicion on the part of the arresting officer that a family violence offence, as opposed to family violence, had been committed by the respondent. Accordingly, I conclude that ground 1 is without merit.
Ground 2 asserts that the magistrate erred "in upholding the submission made by the respondent that he had no case to answer in the charge of resist a police officer". This ground directly attacks the magistrate's conclusion that there was no evidence which would establish that Const Clews had lawful authority to arrest the respondent. His Honour's finding and reasoning with respect to his conclusion in this regard is expressed in the following passage:
"I've reviewed the evidence of the police officers who attended, Constable Clews, and his evidence – he was the arresting officer, he was the back-up officer. The circumstances in which he attended was – the information provided was the same as the information provided – known to all four of the officers at the time. That is a phone call from a young person saying that his father was in the house going off, and that the son suspected – thought that he may have hit the child's mother, and also on arrival that there was clothing seemed to be strewn around the premises.
Constable Clews was the arresting officer, and his evidence was such that a very relatively short time after entry, and really having gained no information, very, very little information as to exactly what was happening, moved to arrest the defendant in circumstances where I don't think it – on the evidence that it could be said that it was with any precision, or that any information flowed from the two initial officers to Constable Clews to in fact arm him with any additional information such that he could reach the view that a family violence incident had occurred."
It is implicit in his Honour's ultimate acceptance of the no case submission that he concluded, on the basis of this factual assessment that, taking Const Clews' evidence at its highest, it was not open to a reasonable magistrate to determine that Const Clews had formed a suspicion that the respondent had committed family violence, or, if he had, that such suspicion was based on reasonable grounds.
I have concluded that his Honour was in error in the assessment contained in the above passage and the ultimate conclusion implicit in his decision. The evidence of Const Clews, taken at its highest, was clearly capable of supporting a finding that he had formed a reasonable suspicion that the respondent had committed family violence. Const Clews said on more than one occasion in evidence, that there was ample information to suggest to him that an incident in the nature of family violence had taken place. His state of mind as explained in the evidence may not have amounted to a belief, and certainly did not amount to knowledge, but it was sufficient to amount to a suspicion. Further, I am of the view that on the information available to Const Clews, he had reasonable grounds for forming that suspicion. The information available to him included:
·     The call from the radio room which suggested that a child had telephoned to say that the father had assaulted the mother.
·     His observation of clothing and property, apparently related to a female, strewn around the front yard and steps.
·     The argumentative demeanour of the respondent and Const Clews' "opinion that he may have had some drinks as well. He may have been intoxicated".
These aspects of Const Clews' evidence provided a sufficient basis to ground a reasonable suspicion that the respondent had committed family violence. It may well be that Const Clews' decision to exercise his power to make the arrest was influenced by the opinion communicated to him by Snr Const Barnes during the unspoken exchange between them immediately prior to the purported arrest, but that consultation was not inappropriate in the circumstances, and simply related to Const Clews’ decision to exercise a power lawfully available to him. A police officer who has a power to conduct an arrest, at least under this legislation, has a discretion as to whether to exercise that power. That exchange related to the exercise of the discretion which arose pursuant to the power of arrest, not to the existence of that power.
Mr Stevens, on behalf of the respondent, submitted that the arrest was not lawful because the police officer informed the respondent that he was being arrested to enable a family violence incident to be investigated, and Const Clews had no power to effect an arrest for the purposes of investigation. In argument before the learned magistrate, Mr Stevens had raised this point and referred to the English decision of R v Lemsatef (above), and in particular the passage at 816:
"Police officers either arrest for an offence, or they do not arrest at all. The law is clear. Neither arrest, nor detention can properly be carried out without the accused being told the offence for which he is being arrested. There is no such offence as helping police with their inquiries."
R v Lemsatef was a case which related to the requirement that customs officers detaining a person give that person a lawful reason for the detention. It did not concern the existence of that power in the circumstances. It was accepted by the court that the power arose if the officer reasonably suspected that the person had committed an offence against the relevant legislation. It was not in question that the officer held the requisite suspicion. The court made the point that had the officer advised the detained person that the reason for detention was that the officer held this suspicion, then the detention would have been lawful, at least as far as the provision of a reason was concerned. The court's determination was that the reason offered, to help with inquiries, did not accurately give notice of the cause of the detention. The cause of the arrest is the lawful basis for arrest, not the practical reason for the exercise of the power so afforded.
The requirement to inform the person being arrested of the cause of arrest is also applicable in Tasmania. This duty is set out in s 301(2) of the Criminal Code, which provides as follows:
"(2) It is the duty of a person arresting another, whether with or without warrant, to give notice, if practicable, of the process or warrant under which he is acting, or of the cause of the arrest."
This section was considered and applied by Blow J (as he then was) in Johnson v Reeves [2004] TASSC 110, 13 Tas R 150, where his Honour observed at [4]:
"The prosecutor needed to prove beyond reasonable doubt that the arrest was lawful, and therefore needed to prove beyond reasonable doubt either that the cause of the arrest was stated to the respondent at an appropriate time or, alternatively, to prove that for one or more reasons it was not practicable to inform the respondent of the cause of the arrest at the time of the arrest."
In this case, the cause of the arrest was Const Clews' suspicion that the respondent had committed family violence, not that he had committed a family violence offence. Accordingly, it is apparent that, although the underlying principle concerning the communication of the cause of the arrest is the same, this case is factually distinguishable from R v Lemsatef. In that case, the requirement was that the suspicion relate to the commission of an offence. That is not necessary to ground an arrest under s 11.
I am satisfied that, in this case, there was sufficient evidence to establish that Const Clews had given notice to the respondent of the cause of the arrest. It is true that the officer did not expressly say that he had told the respondent that he had a suspicion that he [the respondent] had committed family violence. Const Clews seems to have spoken to the respondent in more general terms. For example:
"So I explained to the defendant that some sort of incident has taken place, we needed to investigate it, and for the purposes of doing that, I told him he was under arrest, and I took him by the left arm."
The constable's reference to an arrest for the purposes of investigation was criticised by Mr Stevens. He noted the similarity between that reason and the reason given in R v Lemsatef. However, it seems to me that the police officer was simply communicating in a shorthand way why he was exercising the power afforded to him under s 11(1). There is no doubt that an arrest under that provision contemplates consequent detention for the purposes of further investigation. However, his evidence also made it clear that he had communicated to the respondent that the exercise of the power had been triggered by a suspicion on the part of the police officer that family violence had taken place. It must have been obvious to the respondent that Const Clews suspected that the respondent was the perpetrator of family violence. In my view, the various comments set out above, including those that "an incident that had occurred" and "that something had occurred between him and his wife" provided adequate notice, in the circumstances, of the cause of the arrest.
In order to constitute a prima facie case, there needed to be sufficient evidence which, as a matter of law, was capable of supporting a conclusion that the police officer had lawful authority to make the arrest. If Const Clews was acting lawfully in that regard, then it must follow that Snr Const Barnes was acting in the execution of his duty when he intervened to provide assistance to Const Clews. In my view, the evidence was capable of establishing that Const Clews did hold the requisite suspicion and that the arrest was otherwise lawful. Accordingly, as a matter of law, there was a prima facie case against the respondent. It follows that the magistrate erred in law in deciding otherwise.

Disposition

Having determined that the magistrate was in error in dismissing the charge because there was no case to answer, the question which next arises is the appropriate disposition of the case by this Court. Mr Stevens submitted that I should dismiss the motion, having regard to the provisions of s 110(2)(ab) of the Justices Act 1959, which provides for that outcome "in a case where the court considers that no substantial miscarriage of justice has occurred, even though the cause or matter raised by the motion might be decided in favour of the applicant". This provision is commonly referred to as the proviso. Counsel points out that, at the hearing before the magistrate, after the dismissal of count 2, the respondent decided not to give evidence in respect of count 1, and that charge was decided against him. Counsel submits, according to a somewhat extended interpretation of the said provision, that I have power to dismiss the motion because it would be unfair to require the respondent to face the charge of resist police in circumstances where he has been found guilty of obstruct police, and where, had the incorrect determination not been made by the magistrate, the respondent may well have decided to give evidence in respect of count 1, and the outcome may then have been different.
With great respect to counsel, there is no merit in this submission. After the dismissal of the resist police charge, the respondent was facing one charge only. It related to a discrete incident. I can see no reason why the respondent's decision to give or not to give evidence in respect of count 1 was affected by the magistrate's determination of count 2. Further, the magistrate's determination of the second count arose from his agreement with the submission made by the respondent's counsel.
In any event, there is no basis for the application of the proviso. If the matter is returned to the same magistrate and he applies the law as it has been explained, then he must proceed with the case on the basis that there is a prima facie case in respect of count 2. This is not affected by the determination of count 1. I would not regard the magistrate as bound by his very brief findings in respect of the acceptance of the evidence of the police witnesses in respect of count 1. These findings were clearly expressed on the basis that there was no evidence to contradict the testimony of the officers. Having determined that there is a prima facie case, the respondent will be given a choice as to whether or not to give or call evidence in respect of this count, and the magistrate will then need to make a determination as to whether guilt has been proved beyond reasonable doubt on the whole of the evidence.
In my view, the appropriate course of action is to remit the matter to the same magistrate to complete the hearing in respect of count 2. There is no prejudice to the respondent in doing so. He has not given evidence in respect of count 1, and accordingly is not facing a situation where he will be required to give evidence twice in respect of the same incident, making himself susceptible to cross-examination in respect of prior statements made during the course of that evidence.
The motion is allowed. I order that the order dismissing count 2 on complaint 7065/2015 be set aside and the matter remitted to Magistrate Marron to continue the hearing of count 2, in accordance with law.