"CMS" (A Child) v Giacomini - [2003] WASCA 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: "CMS" (A CHILD) -v- GIACOMINI [2003] WASCA 42

CORAM: WALLWORK J
MURRAY J
BURCHETT AUJ

HEARD: 19 SEPTEMBER 2002

DELIVERED : 19 SEPTEMBER 2002

PUBLISHED : 14 MARCH 2003

FILE NO/S: SJA 1165 of 2001

BETWEEN: "CMS" (A CHILD)
Applicant
AND
DEAN ANTHONY GIACOMINI
Respondent

Catchwords:

Criminal law and procedure - Child unlawfully detained by police - Assault on officer - Whether officer performing a function of office - Officer attempting to restrain disorderly conduct at police station

Legislation:

Child Welfare Act 1947 (WA), s 138B

Result:

Leave refused

Category: A

Representation:

Counsel:

Applicant: Mr M M Flynn
Respondent: No appearance

Solicitors:

Applicant: Legal Aid of Western Australia
Respondent: No appearance

Case(s) referred to in judgment(s):

Attorney‑General of the Northern Territory v Thomas (1979) 24 ALR 172
CMS (A Child) v Giacomini [2002] WASC 151
Dobie v Pinker (1983) WAR 48
Hume & Riley v The Queen (1999) 106 A Crim R 411
Kerr v DPP [1995] Crim LR 394
Lambert v Roberts (1980) 72 Cr App R 223
Lambert v Roberts [1981] 2 All ER 15
Letts v King (1988) WAR 76
McBean v Parker [1983] Crim LR 399
McLiney v Minister [1911] VLR 347
Morris v Beardmore [1981] AC 446
Nguyen v Elliott, unreported; SCt of Vic; 6 February 1995
R v Connolly (1982) 30 SASR 226
Vigus v Mann [1961] WAR 157

Case(s) also cited:

Nil

WALLWORK J: On 19 September 2002 the applicant applied for leave to appeal from a decision of a Judge of this Court. Having heard argument from the applicant's counsel leave to appeal was refused by a majority of the Court. I dissented and now publish reasons for my view of the matter.
The learned Judge in the judgment appealed from said that another Judge of the Court had granted the applicant leave to appeal in relation to convictions for offences contrary to s 318(1)(d) of the Criminal Code (WA). His Honour said that the applicant, who was 16 years of age (just short of his 17^th birthday), was one of two brothers who on 9 June 2001 attempted to attend a blue light disco at Quinns Rocks. The applicant and his brother, together with some other youths, were refused admission to the disco on the grounds of their previous behaviour. About 50 minutes later the constable who had refused the youths admission went back outside the disco to find that a group of boys, including the applicant, was still just outside the door. He asked them to leave a second time. He said the youths then surrounded him. He had felt threatened so he went to his vehicle and called the local police to attend. The group of boys then ran off. He did not see the applicant again that night.
The constable told the police officers who attended at the scene what had happened. They attended the hall just before 9.30 pm. The respondent and another constable then drove to a car park at Quinns Rocks Shopping Centre where they observed the applicant and some other boys walking towards the shops. The respondent approached the group and told them that as a result of the complaint at the disco the constables intended to take the boys to the Clarkson Police Station and contact their parents. The respondent opened the rear door of the police security van and requested the six boys to get inside the van. The respondent said one of the boys ran off and was chased by the other constable with him. That boy was the applicant's brother. He was apprehended and placed in a separate van. All six boys were then taken to the Clarkson Police Station. The applicant's brother was placed in a holding cell. The constable who had apprehended him said that upon being placed in the cell the applicant's brother had started yelling and shouting and spitting on the glass. He said that the applicant was in a cell adjacent to the one occupied by his brother. The applicant had also started to yell obscenities at the police and was spitting at the security camera and hitting the cover of the camera in the cell.
After the boys were placed in the cells arrangements were made for a Sergeant of Police to contact the parents of the boys. The respondent and the other apprehending constable kept them under observation.
The respondent said in evidence that whilst the Sergeant was contacting the parents of the boys he noticed that the applicant and his brother were taking off their pullovers and socks and were making gestures with them such as putting them around their necks. As a consequence the respondent went into the cell where the applicant was. He asked the boys to hand over their jumpers and socks. He said that at that stage the applicant tried to walk out of the cell. He told him to return inside. He said that the applicant said to him: "I want to get my wallet" and tried to push past him. The respondent said he put up his left hand and pushed the applicant back into the cell. On doing that he said that the applicant had flung himself backwards into the cell. The applicant had then got to his feet. As the respondent was trying to close the door to the holding room the applicant ran towards the door and kicked it with his feet forcing the door backwards onto the respondent. The door struck the respondent in the chest area. He had to use force in order to close the door and secure it.
Meanwhile, the applicant's brother in the adjoining cell was yelling obscenities and abuse and climbing onto a half wall which divided the cells. The respondent said that whilst this incident was in progress the parents of some of the boys had arrived and those boys were released. However, the applicant and his brother were not released at that time as a parent had not arrived to collect them.
The respondent said that the applicant was charged with assault by reason of the applicant's behaviour in the holding room in pushing the door into the respondent. After the applicant was charged he was returned to the cell occupied by his brother. The father of the applicant later arrived at the police station. The applicant and his brother were then still misbehaving. It was common ground that the applicant and his brother were released to their father just less than two hours after their arrival at the police station.
The applicant was charged with assaulting a public officer pursuant to s 318(1)(d) of the Criminal Code. For that charge to be established the public officer must be "performing a function of his office or employment…". It was submitted before the learned Judge on behalf of the applicant that, as the applicant was unlawfully detained by the respondent, the respondent had not been "performing a function of his office or employment" at the time he was assaulted by the applicant.
The applicant had originally been apprehended and placed in the van and then taken to the police station allegedly pursuant to s 138B of the Child Welfare Act 1947. That section authorises the apprehension of a child without warrant where a police officer or an officer of the Department authorised by the Minister finds a child:
"(1)…
(a)which he has reason to believe is away from the usual place of residence of that child and he is not under the immediate supervision of a parent or a responsible adult; and
(b)which is in his opinion in physical or moral danger, misbehaving or truanting from school.
(2)…
(3)…"
Pursuant to s 138B(1) a police officer in those circumstances "may apprehend the child without warrant and forthwith take the child to its usual place of residence or school".
Section 138B further provides:
"(3)Where on inquiry no responsible person can be found to take care of the child for the time being the officer may cause the child to be detained at some convenient place until such time as the child can be returned to the care of a parent or responsible person."
In this case the apprehending officers did not pursuant to s 138B(1) "forthwith take the child" to his usual place of residence or school. They took him to a police station.
His Honour said that when hearing the original complaint against the applicant the learned Magistrate had referred to the language which the applicant had used when in his cell and to his behaviour. The learned Magistrate had said:
"It was only proper that the police officers took them to the police station and then the parents could pick them up and take them home in a safe and proper manner."
The learned Magistrate had said that the behaviour of the applicant and his brother had been appalling and not acceptable even if they were being unlawfully detained by the police officers concerned. The learned Magistrate took the view that the police officers had complied with s 138B of the Act:
"…and in my view, showed tremendous restraint under extremely difficult circumstances and were acting in the execution of their duty."
When the two constables originally apprehended the applicant and his friends the youths were not then misbehaving. The learned Judge from whom this application is brought found that the respondent "had reason to form the opinion that the appellants had been misbehaving." His Honour said:
"In my view therefore there was evidence to support the learned Magistrate's conclusion that the first part of s 138B had been complied with. That being the case, Constable Giacomini had authority to apprehend the appellants without warrant. The question then arises whether in taking the two appellants to the Clarkson Police Station rather than to their residence, Constable Giacomini was in breach of the section and if yes, what were the consequences of that breach."
The learned Judge said that the evidence established that the police officers did not take the applicant to his usual place of residence. He said the police officers had other inquiries to attend to at the time and because of the number of youths involved they had not considered it feasible to take each of the children to his place of residence. Accordingly, a decision was made to take them all to the Clarkson Police Station and to phone their parents so that their parents could come and collect them. That is the course which the police officers took. The learned Judge found that it was important in his view that the police officers were entitled to apprehend the applicant in the circumstances in which they had found him.
His Honour referred to the decision in the Attorney‑General of the Northern Territory v Thomas (1979) 24 ALR 172 where Forster CJ considered the meaning of the word "forthwith". In that case, which concerned the meaning of the word "forthwith" in relation to charging a prisoner in certain circumstances, Forster CJ said:
"'Forthwith' must in the circumstances mean at the least 'as soon as conveniently may be' or 'as soon as reasonably possible'."
His Honour also considered the reasons of Virtue J in Vigus v Mann [1961] WAR 157 where Virtue J considered an obligation upon a driver of a motor vehicle involved in an accident to report the accident "forthwith". Virtue J said:
"I do consider that it means that the driver must report as soon as possible and subject only to delay which may be regarded as unavoidable, eg that caused by circumstances resulting from or in connection with the accident, such as the succouring of the injured and the giving of information to persons at the scene who are entitled to it. In the present case I would regard the time lag of three hours, when the accident happened in the heart of the city and the immediate proximity no doubt to a phone, as being far too long to regard it without explanation from the appellant as a proper compliance with the section."
In R v Connolly (1982) 30 SASR 226 when discussing the meaning of the word "forthwith" in relation to the obligation upon a police officer to take an arrested person to the nearest police station, King CJ said:
"The requirement of s 78(1) that the person apprehended be forthwith delivered into the custody of a member of the police force is undoubtedly strict and intended by parliament to be strict… No matter how reasonably the obligation is interpreted, the word 'forthwith' leaves little latitude. It means that the arrested person must be taken to the police station in the shortest time which is reasonably practical in the circumstances."
King CJ said:
"Deviations from the direct route to the police station in order to identify objects or places, or to collect articles from the arrested person's place of residence, place of business or motor vehicle, may be regarded as permissible provided that the delay involved is brief."
At 241 King CJ said:
"The obligation to deliver an arrested person to the officer in charge of the nearest police station forthwith is an obligation placed on the arresting officer for the protection of the public and is not capable, in my view, of being waived by the arrested person. The protection which it affords to citizens against arbitrary detention would be far less effective if its enforcement were to depend upon the resolution of disputed questions as to whether an arrested person had consented to a delay in bringing him to the police station."
In this case the learned Judge from whom this application is brought took the view that the word "forthwith" should be construed in the context of the purpose of the section and that the section was intended to operate with the least possible interference with the rights and freedoms of a child.
His Honour said:
"It should be borne in mind that the police had apprehended six children on the night in question in circumstances where the police had other inquiries to attend to. A practical decision was made to take the children to the police station where their parents could collect them. All the children, including the appellants were so advised. The police did not consider it feasible to run each of the children home because to do so would have taken them away from other duties."
His Honour said:
"However, once the appellants were taken to the police station, it was, in my view, mandatory for somebody at that police station to contact the parents of the appellants forthwith. On the other hand, in this case, it is clear that the appellants were behaving badly from the time they arrived at the police station and the decision to lay charges against them was made shortly after. The police had little opportunity to contact the appellants' parents before charges were laid. Section 138B of the Child Welfare Act has nothing to say about a situation in which charges are laid."
His Honour said:
"It is said that the obligation on the police was to take the appellants to their home, but, failing that, the police were under an obligation to phone the parents of the appellants as soon as they arrived at the police station. I accept that submission. The police did not do so, however, because of the behaviour of the appellants on arrival at, and within, the police station. In those circumstances, in my view, the police were justified in charging the appellants with the two offences. At that stage s 138B of the Child Welfare Act had nothing further to say about the situation."
His Honour also said:
"Whilst it may be said that, in failing to take the appellants home as soon as reasonably convenient after their arrival at the police station, or in failing to inform the parents of their apprehension immediately, the police concerned were not 'performing a function of their office' within the meaning of s 318 of the Criminal Code, in my view, once offences were committed by the appellants, the police officers were carrying out a function of their office in holding the appellants until a parent or other responsible adult was able to attend the police station for the purpose of taking control of them."
His Honour further said:
"… had the appellants not behaved as they did on the night and at the police station, it would have been open to the Magistrate to conclude that the police officers were not carrying out a function of their office in detaining the appellants in a police cell. Based on the findings of fact by the learned Magistrate, the behaviour of the appellant CGS [not the applicant] earlier, and both the appellants shortly after the arrival at the police station, justified her Worship's conclusion that the charges had been established. The appeals will be dismissed." [my words in brackets].
So far as this application for leave to appeal is concerned, s 41 of the Children's Court of Western Australia Act 1988 (WA) provides that Pt VIII of the Justices Act 1902 (WA) applies to a decision of the Children's Court when constituted by a magistrate, as if the decision were a decision of justices under the Justices Act. Part VIII of the Justices Act contains s 206A(1) which provides that an appeal lies to the Full Court by leave from a decision of the Court constituted by one Judge. The application for leave may be made to the Full Court - s 206A(3)(b). The result is that this application for leave to appeal should have been granted unless the Court considered that the appeal was frivolous or vexatious or that the grounds of appeal did not advance an arguable case - s 187 of the Justices Act.
With respect to the question of whether the appeal was frivolous or vexatious, it is significant that the applicant was convicted of a serious offence and was also a child said to be detained in a cell or a police station pursuant to s 138B of the Child Welfare Act (WA) which provides in s 138B(3):
"Where on inquiry no responsible person can be found to take care of the child for the time being the officer may cause the child to be detained at some convenient place until such time as the child can be returned to the care of a parent or responsible person."
Except in that situation, the officer is required pursuant to s 138B(1) to "forthwith take the child to its usual place of residence or school."
In this case, as I understand the facts, the applicant was placed in the cell when arguably there was no good reason why he could not have been taken to his home where his mother was waiting.
In my opinion and with respect, it was also arguable that the applicant should not have been placed in the police van in the first place because he was not at the relevant time "in physical or moral danger, misbehaving or truanting from school" within the words of s 138B(1).
The respondent had said in evidence that at the time he saw the group of boys prior to their apprehension they were not misbehaving. One of the apprehending police officers said in evidence that he was aware that the applicant and his two brothers lived close by in Merriwa. The officer stated:
"… if we had gone past the house and everyone else's house, we could have been doing that all night."
As I understand the facts, the applicant was taken to the Clarkson Police Station. He was then placed in a holding cell. Arrangements were made for a Sergeant of Police to contact the parents of the boys by telephone. The applicant and the other boys were disorderly in the cells. It was after that that the applicant allegedly "ran towards the door and kicked it with his feet forcing the door backwards onto the respondent". That was the conduct the subject of the charge of assaulting a public officer who was performing a function of his office.
It was a little after 9.30 pm when the respondent and the other apprehending constable were told by the constable at the disco of the conduct of the group of boys. It was shortly after that when they were apprehended. It was not until 11.15 pm that the applicant's mother received a telephone call from the Clarkson Police Station asking her to come and collect the applicant and his brother. The applicant's mother had been at home for the entire evening.
The applicant's counsel wished to argue before the Appeal Court that the applicant should have been taken straight to his home rather than to a holding cell before the police officers made a telephone call. Further that s 138B(3) precluded a child being detained in a police station before s 138B(3) comes into effect. As stated above, that subsection provides:
"Where on inquiry no responsible person can be found to take care of the child for the time being the officer may cause the child to be detained at some convenient place until such time as the child can be returned to the care of a parent or responsible person."

In my view and with respect, it could be argued that the respondent was not "performing a function of his office" when he was allegedly assaulted by the applicant.
The decision of Morris v Beardmore [1981] AC 446 was concerned with a constable's duties pursuant to s 8 of the Road Traffic Act 1970 (UK). In the course of his reasons for judgment Lord Edmund‑Davies said at 458:
"But although policemen have been vested by statute with powers beyond those of other people, they are exercisable only by virtue of the authority thereby conferred upon them and in the execution of their duties. A policeman as such - in or out of uniform - has no powers or authority beyond those of the ordinary citizen on occasions or on matters which are unconnected with his duties. My Lords, I have respectfully to say that I regard it as unthinkable that a policeman may properly be regarded as acting in the execution of his duty when he is acting unlawfully and this regardless of whether his contravention is of the criminal or simply the civil law."
His Lordship said:
"Then can it be said that a constable who, against the will of the occupier, enters private property, or having as here entered with permission, persists in remaining after having been ordered to leave, is nevertheless acting in the execution of his duty when he purports to proceed in pursuance of s 8? In my judgment he cannot, and this view is in accordance with the Divisional Court decision in Davis v Lisle [1936] 2 KB 435 which has been followed in enumerable cases over 40 years and was cited with approval by the Court of Criminal Appeal in R v Waterfield [1964] 1 KB 164. In such circumstances the constable acts wholly without authority either at common law or by statute."
In the same decision Lord Scarman said at 463:
"When for the detection, prevention or prosecution of crime Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation. A constable, who in purported execution of his duty has infringed rights which Parliament has not expressly curtailed, will not, therefore, be able to show that he has acted in execution of his duty, unless (and this will be rare) it can be shown by necessary implication that Parliament must have intended to authorise such infringements. I find no indication of any such intention in these two subsections."
The decision in Morris v Beardmore (supra) was followed in Lambert v Roberts [1981] 2 All ER 15, a case concerned with s 8(1) of the Road Traffic Act 1972 (UK) in which similar principles were applied.
The principles in Morris v Beardmore were applied in this Court in Dobie v Pinker (1983) WAR 48 and Letts v King (1988) WAR 76 at 79. See also the reasons in Hume & Riley v The Queen (1999) 106 A Crim R 411.
In Dobie v Pinker Kennedy J referred to the words of Donaldson LJ in Lambert v Roberts (1980) 72 Cr App R 223 where his Lordship said:
"Once the licence was revoked, the police were under a duty to withdraw from the respondent's property with all reasonable speed and, if they did not do so, they were not thereafter acting in the execution of their duty: see Davis v Lisle (1936) 2 KB 434."
With respect to the views of the majority of the Court that the grounds of appeal in this case do not disclose an arguable case, I note that their Honours have said that the police officers in this case could have taken the applicant home and that it was after the youths were placed in the holding cells that they became disorderly. It was after that that the respondent entered the applicant's cell and asked him and others to hand over their jumpers and socks and it was as the respondent left the cell that the applicant attempted to also leave the cell and then as the respondent was attempting to close the door the applicant "ran towards the door and kicked it with his feet forcing the door backwards". The door struck the respondent on the chest.
The other members of this Court have also come to the conclusion that it is debateable whether the preconditions for the operation of s 138B(1) were established before the learned Magistrate, as the respondent considered the applicant was not misbehaving when found. Their Honours are of the view that when the applicant was taken to the police station, without the exercise of any other lawful power of arrest, s 138B was breached. However, their Honours are of the view that there was no question that upon arrival at the police station the applicant with others engaged in what was regarded by the Courts below as serious disorderly conduct and that the respondent was assaulted while endeavouring to restrain the applicant from continuing that behaviour. The question is whether in all the circumstances, in doing so the respondent was performing a function of his office.
In McBean v Parker [1983] Crim LR 399 the appellant butted a police officer during an attempted stop and search. A conviction of assault on a police officer in the execution of duty was overturned because the police had not informed the appellant, as they were required to do, of the reason for the search.
A similar result occurred in Kerr v DPP [1995] Crim LR 394. In this case a police officer mistakenly believed he was completing an arrest already made by a colleague and took hold of the appellant's arm. The appellant punched him and her conviction was overturned on the application of an objective test of whether the police officer was doing something lawful at the time he was assaulted.

In Nguyen v Elliott, (unreported; SCt of Vic; 6 February 1995), the facts were that the appellant was unlawfully stopped and searched by two police officers. He assaulted both officers at different times whilst he was in custody. He had one charge of assault by a police officer in the course of his duty dismissed by a Magistrate. He was convicted of a later assault on the officer who came to assist the arresting officer. Nguyen has relevance to this case because some of Nguyen's conduct towards the second officer was held to be affected by the earlier unlawful conduct. Hedigan J described events which were separated in time and place as not being "juristically separate". That argument could be raised by the applicant CMS. See also McLiney v Minister [1911] VLR 347 where it was held that a person unlawfully deprived of his liberty had a right to use reasonable efforts to leave the custody.
In my view it is arguable that even if the applicant was guilty of disorderly conduct at the police station and assaulted the respondent, the respondent was not then performing a function of his office.
For the above reasons I would have granted leave to appeal.
MURRAY J, BURCHETT AUJ: This was an application for leave to appeal to the Full Court from a decision of Scott J on an appeal by leave against the applicant's conviction for an offence of assaulting a public officer. Scott J dismissed the appeal and published his reasons on 11 June 2002: CMS (A Child) v Giacomini [2002] WASC 151. The further application for leave to appeal was heard by this Court on 19 September 2002 and leave was refused by a majority of the Court. These are our reasons for that decision.
The application for leave to appeal to this Court is made pursuant to the Justices Act 1902 (WA), s 206A under which the application is to be dealt with as if it were made to this Court from the original decision at first instance. It is therefore the case that by s 187 the Full Court was required to grant leave unless it considered that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case. It was upon the latter basis that we refused leave.
The applicant was originally charged with two offences, both committed on 9 June 2001. They were that he was guilty of disorderly conduct contrary to the Police Act 1892 (WA), s 54 and, relative to the appellate proceedings, that he assaulted a public officer (the respondent, a

police officer) who was performing a function of his office at the time, contrary to s 318(1)(d) of the Criminal Code.

The applicant was born on 20 June 1984 so that he was 16 (just short of his 17th birthday) on the date of the alleged offences, 9 June 2001. The complaints were therefore dealt with by the Children's Court and, having been convicted on 17 September 2001, the applicant was sentenced by that Court to an intensive youth supervision order for a period of 6 months. The applicant successfully completed that order before the original appeal to this Court was heard.
It is convenient first to summarise the relevant facts, which are not in dispute. The applicant was refused entry by a police officer named Hammond to a Blue Light Disco being held at Quinns Rocks. The applicant was part of a group who circled the officer in threatening fashion when he asked them to leave the disco after they had been refused entry. Hammond radioed for assistance and the boys ran away.
A little later the respondent and another police officer attended and were told by Hammond what had occurred. They drove to the Quinns Rocks shopping centre where they located the group. The respondent approached the boys and told them that the police were going to take them back to the police station and were going to contact their parents. One boy ran away and was chased by the other officer, PC Trimble. Meanwhile, the other five members of the group, at the respondent's invitation, reluctantly got into the rear of the officers' security van. After a short time Trimble returned with the sixth boy.
Although the police knew where the applicant lived and could have taken him home, they were all six taken to the police station and placed in holding cells while their parents were contacted. They became disorderly. The respondent entered the applicant's cell and asked him and others to hand over their jumpers and socks. As the respondent left the cell, the applicant attempted to do so as well and, while being pushed back into the cell and while the respondent was attempting to close the door, the applicant, as Scott J found, "ran towards the door and kicked it with his feet, forcing the door backwards" and into contact with the respondent who was struck on his chest. This was the conduct held by the Children's Court and Scott J to constitute the assault upon the respondent while acting in the course of his duty to restrain the disorderly behaviour of the applicant and the others.
As a result of the behaviour of the boys, the calls to their parents were delayed. It was common ground that the applicant was released to his father nearly two hours after his arrival at the police station.
The argument of the applicant before the Children's Court, before Scott J,and proposed to be advanced before the Full Court, is that, while the conduct of the applicant might well be held to constitute an assault upon the respondent, the respondent was not at the time performing a function of his office as a police officer because the applicant was unlawfully detained at the time, having regard to the provisions of the Child Welfare Act 1947 (WA), s 138B. It is sufficient to set out the terms of subs (1) of that section:
"Where any police officer, or an officer of the Department authorised by the Minister, finds a child —
(a)which he has reason to believe is away from the usual place of residence of that child and is not under the immediate supervision of a parent or responsible person; and
(b)which is in his opinion in physical or moral danger, misbehaving, or truanting from school,
he may apprehend the child without warrant and forthwith take the child to its usual place of residence or school."
In the Children's Court it was held that the police officers complied with s 138B. It was also held that, even if the applicant was being unlawfully detained at the police station, his behaviour there was "appalling and was not acceptable". It was held that the respondent "showed tremendous restraint under extremely difficult circumstances and [was] acting in the execution of [his] duty".
Scott J agreed. His Honour held that s 138B(1)(a) was satisfied. In addition, as his Honour found, the respondent had reason to form the opinion that the applicant "had been" misbehaving, even though he was apparently not doing so when the respondent came upon him and the others at the shopping centre. His Honour therefore found that it was lawful to apprehend the child without warrant.
His Honour then turned to consider whether the section had been breached because the applicant had been taken, not to his usual place of residence or school, but to the police station. His Honour cited a number of authorities to which, in these reasons, we need not refer. Having regard to those authorities, his Honour held that s 138B "should be read as qualified by the requirement that the police or other officer exercising the power should behave reasonably in complying with the directions of the section". His Honour thought that in the circumstances it was appropriate that the applicant was taken to the police station, effectively en route to his home once a parent was called and came to collect him. His Honour found that while it was "mandatory for somebody at that police station to contact the parents of the [applicant] forthwith", and that was not done, the reason why it was not done was the disorderly behaviour of a serious kind of the applicant and the others in his group at the police station. His Honour found that, had the applicant not behaved as he and his fellows did at the police station, the proper conclusion would have been that the officers were not carrying out a function of their office in detaining the applicant in a police cell, but in the circumstances his Honour thought that the conclusion of the Children's Court was warranted on the facts and he dismissed the appeal.
As we have said, in our view, the contention that that conclusion was arguably wrong cannot be made out, but we would reach the same conclusion by a somewhat different route.
The provisions of s 138B(1) appear to us to be clear. Accepting that the preconditions for its operation were established, which we think to be debatable having regard to the fact that so far as the respondent was concerned the applicant was not misbehaving when found, the power of apprehension is conditioned by the obligation, in the circumstances of this case, forthwith to take the child to its usual place of residence. That was not only not done forthwith, but it was not done at all and so it seems to us that when the applicant was taken to the police station without the exercise of any other lawful power of arrest, s 138B was breached.
However, there is no question that upon arrival at the police station the applicant, with others, engaged in what was regarded by the courts below as serious disorderly conduct, involving violent behaviour and actual or threatened damage to property. The respondent was assaulted while endeavouring to restrain the applicant from continuing that behaviour. The question was whether in so doing the respondent was performing a function of his office.
It is accepted that the disorderly conduct constituted an offence against s 54 of the Police Act. It is a central function of the office of a police constable to preserve the peace and public order. That is so at common law and, for example, by the Police Act, s 7(1). It is central to the oath of engagement taken by a police officer:
"… that I will see and cause Her Majesty’s peace to be kept and preserved, and that I will prevent, to the best of my power, all offences against the same …": Police Act, s 10.
No matter what might be said of the procedure by which the applicant was taken to the police station, once he engaged in disorderly conduct and once his behaviour required him to be restrained from continuing that breach of the peace, it was a function of the office held by the respondent that he should endeavour to prevent the continuation of that offence. It follows, in our opinion, that it is unarguable on the accepted facts that the applicant was rightly convicted. For those reasons, we took the view that the application for leave to appeal should be refused.