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…

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 Barnes v Crossin

Details

AGLC: Barnes v Crossin [2017] TASSC 61
Case: [2017] TASSC 61
Decision Date: 12 October 2017

CaseChat Overview and Summary

In Barnes v Crossin, the defendant, Crossin, was arrested by police officer Barnes on the basis of a reasonable suspicion that family violence had occurred. Crossin subsequently appealed against his conviction on the grounds that the arrest was unlawful and that the arrest was not properly notified. The appeal was dismissed by the Magistrates Court of Tasmania, and Crossin sought further review by the Supreme Court of Tasmania. The court was required to determine whether the arrest was lawful under the Family Violence Act 2004 (Tas), and whether the arrest was properly notified to Crossin. The court also considered whether there was a substantial miscarriage of justice warranting a new trial.

The court found that the arrest was lawful, as the arresting officer had a reasonable suspicion that family violence had occurred. The court noted that the arresting officer was entitled to rely on information provided by a third party, and that the Family Violence Act 2004 (Tas) did not require the officer to independently verify the information before making an arrest. The court distinguished the case from R v Lemsatef, where the arresting officer had made an arrest based on information that was not reliable. The court also found that the arrest was properly notified to Crossin, as he was informed that the arrest was to "investigate family violence." The court noted that the Family Violence Act 2004 (Tas) did not require the officer to provide detailed information about the cause of the arrest, and that the notification was sufficient.

The court further found that there was no substantial miscarriage of justice warranting a new trial. The court noted that the appeal was dismissed on the basis that there was no error of law or fact that would have affected the outcome of the case. The court also noted that the proviso to the particular cases provision did not apply, as there was no evidence of a significant procedural irregularity or unfairness that would have affected the outcome of the case. The matter was remitted to the same magistrate to complete the hearing.

In conclusion, the Supreme Court of Tasmania dismissed Crossin's appeal against his conviction, finding that the arrest was lawful and properly notified, and that there was no substantial miscarriage of justice warranting a new trial. The matter was remitted to the Magistrates Court of Tasmania to complete the hearing.

Orders