CMS (A Child) v Giacomini - [2002] WASCA 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: CMS (A CHILD) -v- GIACOMINI [2002] WASCA 151

CORAM: SCOTT J

HEARD: 14 MAY 2002

DELIVERED : 11 JUNE 2002

FILE NO/S: SJA 1165 of 2001

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

FILE NO/S :SJA 1166 of 2001

BETWEEN :CJS (A CHILD)
Appellant
AND
DEAN ANTHONY GIACOMINI
Respondent

Catchwords:

Criminal Law and Procedure - Appeals against conviction - Whether power to detain a child in custody under s 138B Child Welfare Act - Appellants taken into care of police pursuant to s 138B Child Welfare Act 1947 - Behaviour of children led to charges - Whether public officer was performing a function of his office - Meaning of "forthwith" in s 138B

Legislation:

Child Welfare Act 1947, s 138B

Criminal Code, s 318
Children's Court Act (No 2) 1988
Interpretation Act 1984, s 18

Justices Act 1902

Result:

Appeals dismissed

Category: B

Representation:

SJA 1165 of 2001

Counsel:

Appellant: Ms S K Dewsbury
Respondent: Mr S Vandongen

Solicitors:

Appellant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

SJA 1166 of 2001

Counsel:

Appellant: Ms S J Crisp
Respondent: Mr S Vandongen

Solicitors:

Appellant: Sicard Crisp
Respondent: State Director of Public Prosecutions

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

Adams v Rogers [1907] VLR 245
Attorney‑General of the Northern Territory v Thomas (1979) 24 ALR 172
R v Conley [1982] 30 SASR 226
Vigus v Mann [1961] WAR 157

Case(s) also cited:

Garrett v Nicholson (1999) 21 WAR 226

SCOTT J: On 25 October 2001 Hasluck J granted these appellants leave to appeal in relation to convictions for offences contrary to s 318(1)(d) of the Criminal Code.
The two appellants were each charged with one count of disorderly conduct and one count of assaulting a public officer who was performing a function of his office.
The appellants did not appeal against their convictions for disorderly conduct, but only in relation to their convictions of assaulting a public officer performing a function of his office.
The assaults were alleged to have been committed on a police officer, Dean Anthony Giacomini ("Constable Giacomini"), the respondent in each case.
The facts of the matters giving rise to the charges are not in dispute. In summary, on 9 June 2001 the appellants who are brothers, intended to attend a blue light disco at Quinns Rocks. At around about 8 pm on that night Police Constable Brian Hammond ("Constable Hammond") was running the disco when he noticed the two appellants with a group of juveniles waiting around outside, obviously expecting to get in. Constable Hammond's evidence was that he went and spoke to the two appellants and advised them that they would not be welcome at the disco. He said in his evidence that he told the two appellants, that because of their previous behaviour, they would not be allowed in.
At around about 8.50 pm Constable Hammond went back outside the disco to find that a group of boys, including the appellants, were still just outside the door. Again he asked them to leave and he said that they circled around him. He said that he felt threatened and so he went to his vehicle and called the local police to attend. He said that within a few minutes the group of boys ran off towards Quinns Rocks Skate Park. Constable Hammond said that the two appellants were part of the group that ran off, but he did not see them again that night.
Constable Hammond said that he told the officers who attended in response to his call what had happened, and that thereafter he had nothing to do with the appellants during that night.
In cross‑examination Constable Hammond said that the two appellants had been excluded from the disco for a period of six months but that the six‑month period had expired before the night in question. Constable Hammond's evidence was that the two appellants argued that they should be let into the disco, but Constable Hammond refused to permit them to do so.
It is not in dispute that the appellants did not in fact go into the disco. For the purposes of this appeal, it was not disputed that the appellants had misconducted themselves outside the disco in threatening Constable Hammond and that Constable Hammond had called for local police assistance.
At just before 9.30 pm, and in response to the call, the respondent, Constable Giacomini, together with Paul Dennis Trimble ("Constable Trimble"), attended at the blue light disco in response to Constable Hammond's call. After speaking to Constable Hammond they drove to the carpark of the Quinns Rocks shopping centre where they observed six boys walking towards the shops. Acting on information they had received from Constable Hammond, Constables Giacomini and Trimble identified the group of boys as those who caused the disturbance at the blue light disco.
Constable Giacomini's evidence was that he approached the group and told them that, as a result of the complaint, they were going to take them back to the Clarkson police station and contact their parents. Constable Giacomini opened the rear of the police security van and requested that the six boys get inside the van. Constable Giacomini said that one of the boys ran off and was chased by Constable Trimble. The others were reluctant to get in the van, but ultimately agreed to do so. Constable Trimble chased the boy who ran away, apprehended him and he was taken back to the Clarkson police station in a separate vehicle. The person who ran away was the appellant, CJS. Constable Trimble's evidence was that when he apprehended CJS, CJS said to him, "I will kill you and myself." Constable Trimble placed CJS in the rear of a separate police vehicle and all six youths were taken back to the Clarkson police station.
Constable Trimble's evidence was that on arrival at the police station he told CJS that because of his behaviour, he would be placed into a holding cell.
His evidence was that CJS, upon being placed into the cell, started yelling and shouting and was spitting on the glass. He said that CJS was yelling out, "I'll get you …... Let me out." Constable Trimble's evidence was that CJS's brother, the appellant, CMS, was in a cell adjacent to that being occupied by CJS and he also started to yell obscenities at the police and was spitting at the camera and hitting the cover of the security camera in the cell.
After the group of boys were placed in the cells arrangements were made for Sergeant Raabe, a female police officer, to contact the parents of the boys while Constables Giacomini and Trimble kept them under observation.
Constable Giacomini's evidence was that whilst Sergeant Raabe was carrying out that duty he noticed that the appellants, amongst others, were taking off their pullovers and socks in the holding room and were making gestures with them such as putting them around their necks. As a consequence, Constable Giacomini went into the cell that CMS was in and asked the boys to hand over their jumpers and socks. His evidence was that at that stage CMS tried to walk out of the cell and he told CMS to return inside. He said that CMS said to him, "I want to get my wallet," and tried to push past him. He said that at that stage he put up his left hand and pushed CMS back into the cell. On doing that, he said that CMS flung himself backwards into the cell. Constable Giacomini said that after CMS got to his feet and as he was trying to close the door to the holding room, CMS ran towards the door and kicked it with his feet, forcing the door backwards onto him. The door struck him in the chest area. Constable Giacomini had to use force in order to close the door and secure it.
Constable Giacomini's evidence was that whilst that was happening CJS, in the adjoining cell, was yelling obscenities and abuse and climbing onto a half wall which divided the cells. Constable Giacomini said that CJS was spitting at the glass wall and yelling abuse. He was told to calm down and behave and that he would soon be released when his parents arrived.
Constable Giacomini's evidence was that while this incident was in progress the parents of some of the boys had arrived and those boys were released. However, the two appellants were not released at that time as no parent had arrived to collect them.
Constable Giacomini's evidence was that CMS was charged with assault by reason of his behaviour in the holding room in pushing the door into him.
After CMS was charged, he was returned to the cell occupied by CJS, his brother. At that stage CJS picked up a sock which had been soaked in water which he threw at Constable Giacomini, hitting him in the side of the head. CJS also ran at the door as Constable Giacomini was trying to close it and kicked the door in the same manner as his brother CMS had done, forcing the door onto him. Constable Giacomini did not receive any injuries as a consequence of the door or the sock hitting him.
Constable Giacomini's evidence was that after he asked CJS to settle down, CJS made remarks to him saying, "Give us your gun and I'll shoot you," and was also calling him names.
At that stage the father of the appellants arrived at the police station and he was asked to watch the behaviour of the appellants on a closed‑circuit TV monitor. The two appellants were still, at that stage, misbehaving. It is common ground that the appellants were released to their parents in something just less than two hours after arriving at the police station.
As I have said earlier in these reasons, the appellants have not appealed against their convictions for disorderly conduct, but only in relation to the assault charges to which I have earlier referred.
The grounds of appeal which are common in each case are:
"The learned Magistrate erred in law in that she:
(i)found that the Respondent complied with the provisions of section 138B Child Welfare Act 1947;
Particulars
It is submitted on behalf of the Applicant that the Applicant was taken in to custody contrary to the provision of section 138B Child Welfare Act 1947. It is submitted that there is no power to detain a child in custody under section 138B or section 29 Child Welfare Act 1947.
(ii)failed to give reasons as to how the respondent had complied with section 138B Child Welfare Act 1947;
(ii)found that the Respondent had acted 'in the execution of [his] duty'.
Particulars
The Applicant had been charged with Assaulting a Public Officer pursuant to section 318(1)(d) Criminal Code Act 1913. For the assault to be unlawful, the Public Officer must be 'performing a function of his office or employment …' It is submitted on behalf of the Applicant that as the Applicant was unlawfully detained by the Respondent, the Respondent was not therefore 'performing a function of his office or employment' when he was assaulted by the applicant."
As can be seen from the grounds of appeal, the focus of the contention by the appellants is that the respondent failed to comply with s 138B of the Child Welfare Act 1947. That section provides:
"138B.
(1)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 he 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.
(2)An officer apprehending a child pursuant to subsection (1) of this section shall make inquiries as to whether or not it may be necessary to make application to a Children's Court to declare the child to be in need of care and protection.
(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.
(4)The officer apprehending a child under this section may make application to a Children's Court for an order, and the court may make an order, requiring the parent of or person standing in loco parentis to the child to pay to the appropriate authority the cost of apprehending and detaining the child, or not more than twenty dollars whichever is the less.
(5)An order for payment under subsection (4) of this section may be enforced by warrant in like manner to a fine, but it does not for any purpose constitute a conviction for an offence."
Before dealing with the construction of the section it is necessary to deal with the findings of the learned Magistrate following the trial of the appellants.
In her reasons the learned Magistrate referred to the provisions of s 138B of the Child Welfare Act and the submission by counsel for each of the appellants that the prosecution had failed to comply with that section.
Her Worship referred to the fact that CJS had absconded when the police had initially spoken to the group of youths and following his apprehension, CJS had said, "I'm going to kill you and myself."
Her Worship went on to consider the actions of the police in placing the two appellants in a cell and removing items of clothing before doing so. Her Worship referred to the language that the appellants used when in the cells and their behaviour. Specifically her Worship referred to the evidence where the appellant, CJS, said to the police, "Give me your gun, you fat …., and I'll kill you." Her Worship went on to refer to the particulars of the incidents concerning the assaults to which I have earlier referred.
Her Worship said with reference to the word "forthwith" in s 138B:
"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."
Her Worship went on to refer to the difficulties faced by the police in circumstances such as these where juveniles are found on the streets and referred to the legislative history of s 138B of the Child Welfare Act. Her Worship then said:
"So I have been through those, but what I would say in these cases is that the police officers are damned if they do and damned if they don't."
In my view, in that respect her Worship was referring to the difficulties confronted by police officers who have responsibilities to deal with juveniles in circumstances such as these. If the police do nothing and let juveniles in these circumstances roam the streets, they could be subject to legitimate criticism by the parents of such juveniles and others for doing so. On the other hand, if they exercise their powers and take the juveniles under their control, then they are subject to the sort of criticisms that have been raised in these appeals.
Her Worship then went on to refer to the behaviour of each of the appellants and said:
"So I would approach this from the tail end first - that's the last part of the events - and say that the behaviour of you two was appalling and was not acceptable even if you were being unlawfully detained by the police officers concerned.
It's no excuse for that type of behaviour. Ms Dewsbury alluded to the fact that the police officers were correct in having you charged with the offences before the court today. I would also say that the police officers complied with section 138B of the Child Welfare Act and in my view, showed tremendous restraint under extremely difficult circumstances and were acting in the execution of their duty."
Section 138B of the Child Welfare Act has been reproduced earlier in these reasons. Upon analysis, the matters that a police officer needs to be satisfied about before he can exercise jurisdiction under that section are: that the police officer needs to find a child or children
(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, misbehaving.
In dealing with those elements, it is, in my view, clear from the evidence in this case that Constable Giacomini did find the two appellants away from their usual place of residence and not under the immediate supervision of a parent or responsible person. He had reason to form the opinion that the appellants had been misbehaving.
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 that then arises is 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.
As can be seen from the section, reproduced earlier in these reasons, the section required the police officers, after having apprehended the children, to "forthwith" take them to their usual place of residence. It is not in issue that at that time of night they could not be taken back to a school.
The evidence establishes that the police officers concerned did not take either of the appellants to their usual place of residence. The police had other inquiries to attend to at the time, and because of the number of youths involved, they did not consider it feasible to take each of the children to his place of residence. Accordingly, the decision was made to take them all to the Clarkson police station and to phone their parents so that the parents could come and collect them. That is the course which the police took.
In construing the section, it is important to note, in my view, that the police were entitled to apprehend each of the appellants in the circumstances in which they found them. As I have said, the earlier part of the section was complied with. The question that arises is whether, having apprehended the appellants, the police were then obliged to take the appellants to their usual place of residence rather than to the Clarkson police station. That involves an analysis of the facts and the meaning of the word "forthwith" in the latter part of s 138B(1) of the Child Welfare Act. The word "forthwith" is contained in many statutes, particularly with reference to the criminal law and, in my view, should be construed in the context of each individual statute in which it occurs. In Adams v Rogers [1907] VLR 245 Hood J had occasion to consider the word "forthwith" in relation to the meaning of that word in the Victorian Justices Act where following arrest, Justices were given discretionary power to order the defendant to "find such surety forthwith" so that the person concerned could be released. Hood J said at 250:
"But the section says that he may be ordered to find sureties 'forthwith', and I have given my reasons for thinking that this means without any delay. If that be so, the defendant necessarily commits default when he neglects or refuses to comply with this peremptory order, and there must be a period of temporary detention until the warrant is drawn up."
Hood J went on to say at 251:
"If therefore, there be any ambiguity in the word 'forthwith' in sec 20 of Act No 1959, that meaning should be put upon it that will effectuate the intention of the Legislature, rather than that which will help to defeat such intention."
In my view, a purposive interpretation is similarly required in relation to s 138B.
In Attorney‑General of the Northern Territory v Thomas (1979) 24 ALR 172 Forster CJ had occasion to consider the word "forthwith" in relation to the prisons ordinance of the Northern Territory which required a visiting Justice to "forthwith" charge a prisoner in certain circumstances. His Honour said at 174:
"The question arises as to whether the word 'forthwith', applying as I think it must to the words 'charge' and 'report' in s 31, is mandatory or simply directory. I take the intention of the whole section to be that charges against prisoners should be disposed of without any avoidable delay and I consider that the obligations put upon the visiting justice and the magistrate are mandatory. 'Forthwith' must in the circumstances mean at the least 'as soon as conveniently may be' or 'as soon as reasonably possible' and it could not be said that a delay from 1 August to 14 September fell within these definitions. There must be some limit."

In Vigus v Mann [1961] WAR 157 Virtue J considered the meaning to be given to the word "forthwith" in relation to an obligation upon a driver of a motor vehicle involved in an accident to report the accident "forthwith". His Honour said at 160:
"The word 'forthwith' is a strong word to use and although in the nature of things it cannot be interpreted literally in that there must be some time lag between accident and report, 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 connexion 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 in 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 Conley [1982] 30 SASR 226 King CJ, with whom White and Cox JJ agreed, had occasion to consider the meaning of the word "forthwith" in relation to the obligation upon a police officer to take an arrested person to the person in charge of the nearest police station in order that the person may be secured until he could be brought before a Justice to be dealt with according to law. In that context King CJ said at 239:
"The requirement expressed in the word 'forthwith' in s 78(1) seems to differ little, if at all, from the common law requirement as interpreted in cases such as Clarke v Bailey (1933) 33 SR (NSW) 303; Bales v Parmeter (1935) 35 SR (NSW) 182; Ex parte Evers; re Leary (1945) 62 WN (NSW) 146; Reg v Macecek [1960] Qd R 247 and Reg v Bonce [1965] QWN 48. The common law requirement was given a more extended interpretation in Dallison v Caffery [1965] 1 QB 348, especially by Lord Denning MR at p 366. In the light of that decision the Full Court observed in Drymalik v Feldman [1966] SASR 227 at 233 that 'if the statute says that the person arrested is to be taken "forthwith" before a justice, then the word "forthwith" is not to be construed as importing no more than the common law obligation.'"
King CJ went on to say at 240:
"The requirement of s 78(1) that the person apprehended be forthwith delivered into the custody of the member of the police force is undoubtedly strict and intended by parliament to be strict. As was said by the Full Court in Drymalik v Feldman (supra), the obligation imposed on arresting police officers must be understood reasonably. Nevertheless the word 'forthwith' cannot be ignored. 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 existing circumstances.
Some delay may be necessitated by the circumstances and may therefore be consistent with the obligation to deliver 'forthwith'. … 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. It is not possible to specify exhaustively the examples of delay which may be consistent with compliance with the requirements of the section. It can be said, however, that some delays are not so consistent. It is not permissible to delay delivery of the arrested person to the officer in charge of the police station in order to conduct a systematic interrogation."
King CJ said at 241:
"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 delay in bringing him to the police station. In my view Detective Feltus was correct in taking the view that he was not free to delay delivery of the appellant to the City Watchhouse in order to take him to his home to be present during the systematic search, even with his consent. … He must be brought before a Justice as soon as is reasonably practicable. Some interval of time will be necessary to enable the evidence to be collated for the purpose of laying a formal charge and to enable the preparation of a brief containing the information to be placed before the justice. Subject to that factor and the availability of a Justice, there should be no delay."
Having reviewed those authorities, in my view s 138B, insofar as it uses the word "forthwith", should be construed in the context of the purpose of the section. In my opinion, the section contains a general power, vested in police officers and others, primarily for the purpose of protecting the child or children concerned. In addition, in some circumstances the exercise of the statutory power may afford some protection to the public. The section is intended to operate with the least possible interference with the rights and freedoms of a child.
With those considerations in mind, it is then necessary to consider the application of the section to the facts of these cases. 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.
In my opinion, 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. As King CJ said in R v Conley (supra), deviations from the direct route may be necessary, depending on the circumstances. However, once the appellant 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 thereafter. 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.
The submission by counsel for each of the appellants was that because the police delayed in contacting the appellants' parents, they did not comply with s 138B. 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.
In all of the circumstances, therefore, I am unable to conclude that the grounds of appeal are made out. 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.
I would, finally, emphasise that, as has often been said in these Courts, each case must turn upon its own facts and the requirement that the police officers must behave reasonably in complying with s 138B must be determined on a case‑by‑case basis. The thrust of the section is that the welfare and protection of the child must be the first consideration. In that respect, 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 CJS earlier and both appellants shortly after arrival at the police station justified her Worship's conclusion that the charges had been established. The appeals will be dismissed.