Follett v Mann
[2019] ACTSC 141
•4 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Follett v Mann |
Citation: | [2019] ACTSC 141 |
Hearing Date: | 12 February 2019 |
| Submissions last received: Decision Date: | 1 March 2019 4 June 2019 |
Before: | McWilliam AsJ |
Decision: | See [70] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal against conviction – common assault – where arrest found to be unlawful under s 121 of the Casino Control Act 2006 (ACT) – where alternative source of power under s 218 of the Crimes Act 1900 (ACT) existed to arrest by way of “citizen’s arrest” – whether power to arrest impliedly requires element of necessity – whether appellant acted in self-defence – whether findings of guilt otherwise unsafe or unsatisfactory |
Legislation Cited: | Casino Control Act 2006 (ACT) s 121 Crimes Act 1900 (ACT) ss 24, 26, 49, 212, 218 Magistrates Court Act 1930 (ACT) s 208 |
Cases Cited: | Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 Coleman v Power [2005] HCA 39; 220 CLR 1 Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 |
Parties: | Jennifer Helen Follett (Appellant) Matthew John Mann (Respondent) |
Representation: | Counsel M Keaney (Appellant) S Naidu (Respondent) |
| Solicitors Darryl Perkins Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 45 of 2018 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Magistrate Morrison Date of Decision: 18 July 2018 Date of Sentence: 16 August 2018 Case Title: Mann v Follett & Follett Citation: [2018] ACTMC 13 Court File Number: CC 7906 of 16 |
McWilliam AsJ:
On 29 July 2016, Jennifer Follett, the appellant on this appeal, was involved in an incident at the Canberra Casino (Casino) after she sought to intervene between security officers employed by the Casino and her twin sister, Samantha Follett, whom they were purporting to arrest.
The appellant was arrested (along with her sister) and subsequently charged with three offences:
(a) Common assault, contrary to section 26 of the Crimes Act 1900 (ACT) (the Crimes Act), in that she punched a Casino officer, namely Mr Anthony Orlandi (CC 16/9645).
(b) A second offence of common assault, which occurred after she had been detained in the security office of the Casino. The appellant was alleged to have struck a different Casino officer, namely Mr Joshua Cole, in the face with her cardigan (CC 16/9646).
(c) Assault occasioning actual bodily harm, contrary to section 24 of the Crimes Act, in that she bit a third Casino officer, namely Mr Benjamin Feain, twice, first on the elbow and then on the forearm (CC 16/9647).
In relation to the third charge listed above, an alternative lesser charge of common assault was available, pursuant to s 49 of the Crimes Act.
On 18 July 2018, Magistrate Morrison found the appellant not guilty of the first offence of common assault in respect of the punch. His Honour found the appellant guilty of the second offence of common assault relating to the cardigan. In respect of the third offence, his Honour found the appellant guilty only of the alternative offence of common assault, and only in relation to the first bite.
The appellant was sentenced pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT) for the two proven offences of common assault, and received a non-conviction order, a condition of which was that she enter into a Good Behaviour Order for a period of 12-months, and pay the associated court costs within one month.
By this appeal, the appellant seeks to overturn the findings of guilt made by the court below on four grounds. The appellant argues (in summary) that:
(a) She was not lawfully detained (Ground 1);
(b) There was a reasonable possibility that she was acting in self-defence or defence of another person (being her sister) (Ground 2);
(c) Certain evidence obtained pursuant to the unlawful arrest should have been excluded (Ground 3); and
(d) In all of the circumstances, each of the findings of guilty was unsafe and unsatisfactory (Ground 4).
Principles applicable on appeal
The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The applicable principles were set out in Peverill v Crampton [2010] ACTSC 79 by Refshauge J at [24], as follows:
Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seems to be as follows:
1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising discretion on a wrong principle or in a way that is clearly wrong.
2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5. The appellate court is not restricted to making decisions which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7. The appellate court should not determine the correct judgment for itself and only order a retrial if it cannot.
These principles have been cited in a number of authorities since, including Greenwood v Barlee [2018] ACTCA 62 at [7] and Holloway v Thurgar [2016] ACTSC 32 at [4].
Evidence and submissions on appeal
The entirety of the evidence in the Court below is before this Court on appeal. This includes the transcripts of the hearing which took place over five days, and the CCTV footage of the incidents that occurred on the night of 29 July 2016.
During the hearing, an issue arose as to the proper construction of s 218 of the Crimes Act and whether it impliedly imports a test of necessity. I allowed supplementary submissions on that question following the hearing, as well as submissions addressing what appears to have been a finding of a collective state of mind on the part of the Casino officers by the magistrate, and submissions addressing an alternative argument of self-defence.
Ground 1 – Was the appellant lawfully detained?
The issue is whether the magistrate erred in finding that the appellant was lawfully detained. If the appellant was not lawfully detained, this may have had consequences for whether evidence led in the court below should have been excluded, and for any findings as to whether the appellant was acting in self-defence when responding to her unlawful arrest.
The magistrate delivered written reasons on 18 July 2018 (Reasons). Relevant to this appeal, his Honour was satisfied the evidence established (to the criminal standard) the following facts:
(a) The appellant did punch Casino officer Orlandi, but was acting in self-defence (including the defence of her sister).
(b) The appellant was then arrested in the smoking area of the Casino after she struck Casino officer Orlandi in the presence of casino officer Cole.
(c) The appellant struck Casino officer Cole in the face with her cardigan.
(d) The appellant bit Casino officer Feain twice.
In the court below, there was an argument about whether a Casino officer had power to arrest either the appellant or her sister under the Casino Control Act 2006 (ACT) (Casino Control Act). The power is set out in s 121, relevantly as follows:
121 Detention of suspected person
(1) This section applies if a casino official suspects, on reasonable grounds, that a person (the suspected person) in the casino is committing, or has committed, an offence.
(2) The official must detain the suspected person in a suitable place in the casino until a police officer arrives.
(3) …
(Emphasis added.)
The magistrate considered whether the smoking area was part of ‘the casino’. His Honour found that diagrams contained in the regulations to the Casino Control Act designated what comprised ‘the casino’ and they did not include the smoking area. Therefore, the words of s 121 above did not give any casino officer power to arrest a person in the smoking area. That finding is not challenged on appeal.
Whether the appellant was lawfully detained thus turned on whether another source of power existed. The magistrate considered s 218 of the Crimes Act as this alternative head of power, which is set out in the following terms:
218 Power of arrest without warrant by other persons
(1) A person who is not a police officer may, without warrant, arrest another person if he or she believes on reasonable grounds that the other person is committing or has just committed an offence.
(2) A person who arrests another person under subsection (1) shall, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a police officer.
The appellant argues that the purported citizen’s arrest of the appellant was not authorised by s 218 of the Crimes Act, as the conditions precedent to the operation of the section were not met.
This raises an issue considered by the magistrate as to whether necessity is an element of s 218 of the Crimes Act. The argument was described at [46] of his Honour’s Reasons:
The [appellant’s] submissions are that, in addition to the express pre-conditions to the exercise of the power of arrest which appear in that section (and in sections 221 and 222), its use is reserved for situations in which its exercise is necessary – see Uber BV & Anor v Howarth [2017] NSWSC 54 (“Uber”). That submission is not accepted by the Prosecutor who says, “Whilst NSW courts have read an additional requirement of necessity into their equivalent citizen’s arrest power, there is no settled jurisprudence in the ACT.”
The magistrate went on to express surprise that there was no authority in this jurisdiction on the construction of s 218, before stating at [47]-[48]:
[47]…Nevertheless the issue of necessity was at the very heart of the civil decision of Slattery J in Uber and his Honour’s reasons refer to the several authorities in NSW supporting the conclusion that the requirement of necessity is part of a “fundamental approach” to the exercise of the power of arrest – see the references in Uber to DPP v Carr [2002] 127 A Crim. R. 151; [2002] NSWSC 194 at 159 [at 35]; DPP v CAD [2003] NSWSC 196 at [7]; DPP v AM [2006] NSWSC 348 [21] per Hall J and Fleet v District Court of New South Wales [1999] NSWCA 363 at [73]-[74]; and DPP v Matthews-Hunter [2014] NSWSC 843.
[48] The decision in Uber is not binding but it is highly persuasive. In the circumstances I conclude that the power of arrest provided for in section 218 of the Crimes Act 1900 (ACT) is subject to a requirement of necessity in the same manner as was expressed in Uber.
When considering the question of whether the appellant had been lawfully arrested in accordance with s 218 of the Crimes Act, the magistrate later specifically considered and applied the test of necessity. At [94] to [96] of the Reasons, the magistrate stated:
[94] I am satisfied on the basis of the evidence that the Casino Officers believed that [the appellant] had committed an offence when she struck Casino Officer Orlandi, and further that despite their mistake as to the application of the powers under the Casino Act, there were reasonable grounds for their belief.
[95] As to the requirement of necessity, the circumstances surrounding the arrest of [the appellant] are easily distinguished from those surrounding the unlawful arrest of [the appellant’s sister]. …
[96] At the time of the arrest of [the appellant] she had just struck Casino Officer Orlandi under circumstances where the physical altercation was on-going. In the circumstances I am satisfied that it was necessary for Casino Officers to arrest her.
On appeal, the appellant sought to incorporate the same arguments as those made in closing submissions in the court below, albeit in a more general manner. As I have understood the argument, it was as follows:
(a) The appellant accepted on appeal the magistrate’s finding that she was arrested just outside the smokers exit area outside the Casino, after she had punched Casino officer Orlandi.
(b) The appellant also agreed with the magistrate’s construction of s 218 of the Crimes Act, in that such a power required the restraint to be ‘necessary in the circumstances’, relying on Uber BV & Anor v Howarth [2017] NSWSC 54 (Uber) and a number of other authorities in New South Wales, namely Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701; DPP v Carr [2002] NSWSC 194; 127 A Crim R 151 (DPP v Carr); DPP v Matthews-Hunter [2014] NSWSC 843 (DPP v Matthews-Hunter); and, JCS v R; R v JMS [2006] NSWCCA 221; 164 A Crim R 1.
(c) However, the appellant argues that there were methods available to the Casino officers other than detaining the appellant, which would have adequately addressed the situation that unfolded outside the Casino. Accordingly, any arrest effected was not ‘necessary’, so that the appellant was not lawfully detained.
(d) The magistrate erred in finding otherwise.
(e) Alternatively, the evidence as to the belief of the relevant Casino officer was insufficient to establish that a belief was actually held, let alone on reasonable grounds, and the magistrate erred in finding otherwise.
Does s 218 of the Crimes Act require an element of ‘necessity’?
For the reasons that follow, s 218 of the Crimes Act does not import an additional element of ‘necessity’. What is required is the reasonable exercise of the power and this will largely depend on individual circumstances. In that regard, the magistrate erred in the construction of the section, however, such error is immaterial to the ultimate finding that the appellant was lawfully detained.
Further, having reviewed the CCTV footage for myself and the transcript of the evidence given by Casino officer Cole in particular, I have not discerned any error in the factual findings made by the magistrate. I have come to the same conclusion that on the proper application of the legal test, the facts establish beyond reasonable doubt that the appellant was lawfully detained.
The appellant’s argument as to whether s 218 requires an additional element of necessity
The appellant submitted that the magistrate was right to read the test of necessity into the citizen’s arrest power, arguing (in summary) as follows:
(a) The citizen’s arrest power as set out in s 218 of the Crimes Act had its origins in the now repealed s 352 of the Crimes Act 1900 (NSW) (NSW Act), which, as the authorities referred to by the magistrate confirm, has been construed to require an element of necessity. The appellant referred to the principle that arrest is, at common law, a measure of last resort: see Donaldson v Broomby (1982) 40 ALR 525 and DPP v Carr.
(b) The equivalent NSW provision has also changed over time, and is now reflected in s 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), as follows:
s 100 Power of other persons to arrest without warrant
(cf Crimes Act 1900, s 352)
(1) A person (other than a police officer) may, without a warrant, arrest a person if:
(a) The person is in the act of committing an offence under any Act or statutory instrument, or
(b) The person has just committed such an offence, or
(c) The person has committed a serious indictable offence for which the person has not been tried.
(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
(c) Although the wording of the NSW and Territory provisions is now different, the evolution of the power through various amendments over the years does not evince a deliberate intention by the Legislature to remove of the element of necessity. To the extent that necessity is no longer explicitly or implicitly present in the wording of the s 218 of the Crimes Act, this may have been an oversight on the part of the Legislature and should be treated as such.
(d) As part of the process of statutory construction, one should compare the powers contained in s 218 to the power of arrest without a warrant afforded to the police contained in the same Division (Division 10.5), in s 212 of the Crimes Act. It is in the following terms:
Section 212 – power of arrest without warrant by police officers
(1) A police officer may, without warrant, arrest a person for an offence if the police officer suspects on reasonable grounds that –
(a) The person has committed or is committing the offence; and
(b) Proceedings by summons against the person would not achieve 1 or more of the following purposes:
i. Ensuring the appearance of the person before a court in respect of the offence;
ii. Preventing a repetition or continuation of the offence or commission of another offence;
iii. Preventing the concealment, loss or destruction of evidence relating to the offence;
iv. Preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
v. Preventing the fabrication of evidence in respect of the offence;
vi. Preserving the safety or welfare of the person.
(2) A police officer may, without warrant, arrest a person for a family violence offence if the police officer suspects on reasonable grounds that the person has committed or is committing the offence.
(e) The words of s 212 evince a clear intention that the exercise of the power by a police officer is a last resort, so that there is a requirement for necessity before an arrest without warrant would be considered lawful. It would be extraordinary for citizens to be provided with unfettered powers of arrest when police powers of arrest are subject to a limitation of necessity.
(f) Accordingly, the magistrate properly read necessity into the interpretation of s 218 of the Crimes Act, and the reasoning set out in Uber applies to the exercise of the power in the Territory.
The respondent’s argument as to whether s 218 requires an additional element of necessity
The respondent argues that a textual and purposive approach to the construction of the provision must be taken. If that is done here, then on a plain reading of the provision, it is clear that there is no requirement of necessity.
The words of s 218 contain two core elements for the lawful exercise of the power:
(a) A reasonable belief requirement in relation to a person having committed an offence – ‘…if he or she believes on reasonable grounds…’ and,
(b) A temporal requirement – ‘the other person is committing or has just committed an offence’.
The respondent argues that when read in context, particularly against s 212 of the Crimes Act, the Legislature did not mistakenly or inadvertently omit the requirement of ‘necessity’ with respect to s 218 of the Crimes Act. Instead, the inference to be drawn is that the additional requirement of necessity in s 212 was inserted to prevent the power from being abused by police officers who are in positions of greater authority and knowledge relative to ordinary citizens.
When seeking to construe the meaning of s 218, preference should be given to an interpretation that would best achieve the purpose of the legislation (referring to s 139(1) of the Legislation Act 2001 (ACT) (Legislation Act);
Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 (Parkinson) at [12]).
As there is nothing unclear or unambiguous about the wording of the provision that might lead to a result that is absurd or unreasonable, it is not necessary to read in an additional requirement of necessity into the provision: s 138 of the Legislation Act and Parkinson at [12]. The clear and unambiguous words of the provision should not be ignored.
The legislative history provided by the appellant relating to the development of the citizen’s arrest provision in the ACT and NSW does nothing to show that necessity was ever an express element of either power.
In any event, the respondent contends the decision of Uber is not binding and the magistrate was led into error by the appellant relying upon it in her submissions to read necessity into s 218 into the Crimes Act.
Consideration as to the proper construction of s 218
I generally accept the submissions of the respondent. First, the plain words of s 218 of the Crimes Act do not require that it be ‘necessary’ to act by way of citizen’s arrest, in the sense that no other means are available (such as taking the person’s contact details and passing them to police). On the face of the provision:
(a) There must be a belief held that a person is committing or has just committed an offence; and
(b) Such belief must be on reasonable grounds.
If those criteria are met, the person may arrest without a warrant. As the existence of such a choice imparts an element of discretion, there is a further principle that applies, namely that the exercise of the statutory power includes an implied requirement that the power be exercised reasonably: Kruger v The Commonwealth of Australia (1997) 190 CLR 1 at 36, which was referred to, along with a number of other High Court authorities confirming the principle, by Slattery J in Uber at [143].
Further still, the law places high value on personal liberty, and as such, a statute which authorises the detention of a person must be strictly construed: Zavarinos v State of NSW [2004] NSWCA 320; 62 NSWLR 58 at [23] per Bryson JA.
However, the reasonable exercise of the power and the strict construction of the statute does not result in a conclusion that the only reasonable exercise of the power will be when circumstances of ‘necessity’ exist, such as to amount to it being an implied requirement of s 218.
Second, as a matter of context, and in particular the contrast of the language in s 218 with that of s 212 of the Crimes Act, it is clear that the Legislature has given consideration to the concept of necessity, or the availability of other means, and applied it only in the case of a police officer, arresting a person without warrant. The detail set out in s 212 compared with the very different words of s 218 suggest that this was no oversight on the part of the Legislature.
A comparison of the two sections also reveals that the circumstances in which a police officer may arrest someone without a warrant under s 218 are much wider than those where a citizen may act under s 212. Police officers need only have a suspicion, and there is no immediate temporal requirement of a person having ‘just’ committed an offence. When those factors are taken into account, the limits placed on a police officer are manifestly an appropriate check on police power.
Third, the case law in respect of NSW decisions (relied upon by both the appellant and the magistrate) does not bind this Court to reach a different conclusion. Section 352 of the NSW Act, before it was repealed, applied to ‘any constable or other person’ as being able to arrest without warrant. That is an important difference to be considered, as are the facts of the cases, of which a majority applied to the exercise of power by a police officer.
In cases such as Matthews-Hunter, where the facts concerned a person who was not a police officer carrying out a citizen’s arrest, the differences between the NSW and the Territory provisions are highlighted. In that case, Fullerton J was dealing with a transit officer’s decision to arrest a person and found no distinction between the obligations imposed on a police officer when exercising their power to arrest without a warrant and those that apply when the “citizens’ arrest” power is relied upon by a member of the public.
However, her Honour’s finding was based in part on discerning the NSW legislature’s intention from the second reading speech of the Legislative Assembly when the LEPRA was introduced (see [59]). When regard is had to the second reading speech of the NSW Attorney General on 17 September 2002, general statements are made that the provisions of the relevant part of the LEPRA codify the common law, reflect that the act of arresting another is only to be exercised when necessary, and should generally only be used as a last resort. By contrast, the Legislative Assembly in the Territory did not make similar statements when enacting ss 212 and 218 the Crimes Act. In any event, s 218 is worded differently to the current NSW provision, being s 100 of the LEPRA, set out above in that:
(a) Section 218 of the Crimes Act contains a ‘reasonable belief’ test which is missing in s 100 of the LEPRA; and
(b) In the case of indictable offences, a citizen in NSW may arrest a person at any time – there does not need to be a temporal connection of the person either being in the act of committing the offence or having ‘just’ committed the offence.
Thus, the power to arrest under s 100 of the LEPRA is wider than that under s 218 of the Crimes Act and this may have been a consideration for an emphasis on the exercise of the power being ‘necessary’ or one of last resort. In the Territory, the Legislature has expressly chosen to balance the competing interests of the right to liberty and the public interest in securing an accused’s attendance at court by other means, those being the temporal limitation and the subjective belief on objectively reasonable grounds.
Fourth, the presence of ‘necessity’ before an arrest may be lawfully made under s 218 of the Crimes Act is not essential to achieve the purpose of the provision. It is sufficient for the Court to consider whether the power under s 218 was reasonably exercised. In my view, that constraint is adequate to deal with any question of disproportionality. For example, someone who sees a person in the street littering and proceeds to make a citizen’s arrest to bring the person before a police officer is unlikely to be exercising the power reasonably.
On the proper construction of s 218 then, as the text, context or purpose of the provision do not require the presence of necessity, the magistrate erred in construing the section to import such a test.
Any error was immaterial
Applying s 218 to the facts, the first consideration is whether the arresting Casino officer (which both parties accepted was Casino officer Cole, notwithstanding the more general reference by the magistrate to the Casino officers) believed an offence had been committed. The issue is whether the belief was actually held, not whether it could, justifiably, have been held: R v Hill[2012] ACTSC 17; 6 ACTLR 167 per Refshauge J at [90].
The evidence before the court below was clear that Casino officer Cole held the belief that the appellant had just committed an offence of striking Casino Officer Orlandi. His evidence was:
[Cole] I witnessed the shorter blonde female strike my security officer in the face with what appeared to be a closed fist.
[Prosecutor] And which security officer are you referring to? --- Anthony [Orlandi].
…
[Cole] … I only saw that it made contact with the head. …
[Cole] …due to the fact that I’d seen another assault occur on my staff I advised my staff to restrain the medium blonde female and I informed my staff that we would be now detaining both females in the security office.
…
[Cole] Once she had struck Anthony with the punch that was when myself and Anthony [Orlandi] grabbed a hold and I informed her then and there that she would be getting detained for assault on my staff.
Considering next whether the belief was formed on reasonable grounds, the appellant relies on a submission based on Ruddock v Taylor [2005] HCA 48; 220 CLR 1 (Ruddock v Taylor) at [40], that what constitutes reasonable grounds for a suspicion, or a belief, must be judged against what was known or reasonably capable of being known at the relevant time.
The appellant then argues that what the Casino officers ought reasonably to have known was the limit of their authority (namely that they could not arrest a person in the smoking area) and the following conclusion that in punching Casino officer Orlandi, the Casino officers should further have known that the appellant was acting lawfully in self-defence.
That submission should be rejected and I note that a similar argument was rejected by the High Court in Ruddock v Taylor at [38]-[40]. In addition to this authority, the respondent relied on other authorities establishing that a reasonable belief can be held by an individual even if the person holding the belief was under misapprehension about the law at the time: Veivers v Roberts, Ex parte Veivers [1980] Qd R 226 (Veivers); Coleman v Power [2005] HCA 39; 220 CLR 1.
Applying those authorities, a Casino officer’s belief that he had the power to arrest someone who had just punched one of his colleagues in the smoking area of the Casino does not retrospectively cease to be reasonable because it later transpires (in court proceedings) that the Casino officer was mistaken about the law. Having directly observed the appellant punch another Casino officer, the belief of Casino officer Cole as to the offence of common assault having just taken place – wherever the location – was on reasonable grounds.
Although the initial punch was not captured on CCTV footage, the finding that this occurred was not contested on appeal. The CCTV footage clearly supports the magistrate’s finding that the physical altercation between the appellant and the Casino officers was ongoing. In the circumstances of this case, it was not unreasonable for Casino officer Cole to direct that the appellant be arrested.
The above reasoning is entirely consistent with the magistrate’s reasoning process in the court below. His Honour referred (at [92]) to the test to be applied as being:
…not whether the person arrested has committed an offence but rather whether the person effecting the arrest believes on reasonable grounds that the other person is committing or has just committed an offence.
His Honour went on to state (at [93]) that an officer may hold a reasonable belief (on reasonable grounds) justifying arrest despite a subsequent determination that no offence has in fact been committed, citing Ruddock v Taylor and Veivers, before drawing the conclusion at [94] of the Reasons, which has already been set out at [19] above. There was no error in that conclusion. That the magistrate then went further and separately considered necessity under his Honour’s construction of s 218 of the Crimes Act had no bearing on that part of the magistrate’s reasoning.
Accordingly, there was no error in the finding that the appellant was lawfully detained. Ground 1 has not been made out.
Ground 2 – Was there a reasonable possibility that the appellant was acting in self-defence, or in defence of another person?
Having found that the appellant was lawfully detained pursuant to s 218 of the Crimes Act, it was nevertheless open to the appellant to raise the availability of self-defence: Thomas v R (1992) 65 A Crim R 269 at 274.
In the court below, the appellant raised self-defence on her own behalf and in defence of her sister in respect of the two offences that are the subject of this appeal.
The applicable test was set out by the magistrate at [61] of the Reasons and there is no challenge to those principles. The test is whether the appellant believed, upon reasonable grounds, that it was necessary in self-defence to do what she did: Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 (Zecevic) at 661. This extends to defence of another: R v Portelli [2004] VSCA 178; 10 VR 259 at [19].
Following Dal Cortivo v The Queen (2010) 204 A Crim R 55 (Dal Cortivo) at 62 and s 33(1) Criminal Code 2002 (ACT), the test involves two limbs:
(a) First, a subjective enquiry into the appellant’s actual state of knowledge and belief at the time, with evidence of intoxication being taken into account; and
(b) Second, an objective enquiry as to whether the belief was held on reasonable grounds, judged by the standard of a reasonable person who is not intoxicated.
In Zecevic at 663-664, Wilson, Dawson and Toohey JJ held:
…It is…only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence. The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist – where, e.g., he is engaged in criminal behaviour of a violent kind – then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.
The magistrate dealt with the issue of self-defence in relation to the common assault charge involving Casino officer Cole at [107]-[120] of the Reasons. The magistrate recorded (at [111] of the Reasons) that he had attempted to delineate the appellant’s conduct in terms of her reaction to her own arrest, and her conduct said to comprise defence of, or assistance to her sister, but had encountered practical difficulties in doing so. The critical findings with respect to the incident involving the appellant’s use of the cardigan in a purported act of self-defence are at [119] and [120], and are to the effect that:
(a) At the time he was struck by the cardigan, Casino officer Cole was not involved in any physical restraint of the appellant’s sister and the appellant was not at that point being physically restrained by any person;
(b) It is hard to see how, in the context in which the conduct took place, the appellant could have had any genuine belief that striking Casino officer Cole in the face with her cardigan was necessary to defend her sister; and
(c) In any event, there were no reasonable grounds for any such belief.
The critical findings with respect to the incident involving the appellant biting Casino officer Feain are at [128]-[143], relevantly as follows:
[128] It is convenient to refer at this point to what can be seen on the CCTV in relation to all three incidents which are the subject of these two charges.
[129] The first in time bite occurs shortly after [the appellant] has struck [Casino officer] Cole in the face with her cardigan. She was grabbed from behind in a bear hug by Casino officer Feain, and he and another Casino officer place her on the ground. They were entitled to use force to restrain her given the assault on Casino officer Cole which had just taken place. On the CCTV footage, Casino officer Feain is looking away from [the appellant] back towards Casino officer Cole when he is seen to bring his arm away sharply in response to what I have concluded is Jennifer biting him. The incident is recorded on the CCTV footage starting at about 23:33:07.
[130] Several violent exchanges (not the subject of charges) then take place in the security office.
…
[133] In the immediate lead up to the second bite [the appellant] is still seated on the chair in the security office. She reaches for the telephone on the desk as if to make a call but is prevented from doing so and the telephone is taken from her. She then lunges towards where [her sister] is still being held on the floor. She appears to attempt to grab one of the casino officers holding [her sister] on the floor. She is pulled away, placed on the floor face down and held down by three casino officers. One of them is Casino officer Fein. Again Fein appears to be looking towards one of the other casino officers also holding [the appellant] when he can be seen to draw his arm away quickly in response to being bitten. The bite occurs at about 23:40:06 on the CCTV record.
…
[138] on the basis of the evidence showing [the appellant] striking Casino officer Cole with her cardigan (and which I have concluded amounted to an assault on him) I am satisfied that [the appellant] was lawfully being restrained for that assault at the time she first bit Casino officer Fein. Her conduct in biting Casino officer Fein at this time appears to be a reaction to that restraint. Nothing on the CCTV footage indicates that the use of force against her was unreasonable or excessive. In the circumstances I am satisfied that self defence has been negated in relation to that first bite.
[139] The second incident of biting occurs at about 23:40:06.
[140] [The appellant’s] conduct by way of biting Casino officer Fein on the second occasion immediately follows her restraint after again attempting to assist [her sister]. Against that background her act of biting Casino officer Fein can be seen to be an extension of her conduct in attempting to assist [her sister].
…
[142] In all the circumstances I cannot be satisfied beyond reasonable doubt that [the appellant] did not believe that it was necessary to do what she did in an attempt to defend [her sister]. Nor can I be satisfied that there were no reasonable grounds for such a belief.
[143] In the end result am satisfied that [the appellant] is criminally liable for conduct comprising only the first in time bite to Casino officer Feain.
The appellant argues that the reasoning process of the magistrate was flawed. More specifically, it is submitted that his Honour should have properly regarded the events as a course of conduct arising from the actual unlawful imprisonment which had occurred and was continuing to occur in relation to the appellant’s sister, and the necessary and appropriate defensive conduct of the appellant, based on her perception that both her sister’s arrest and her own were unlawful.
Having reviewed the CCTV footage for myself, there was no error in the above reasoning of the magistrate. It is not the case that simply because the magistrate initially found the appellant was acting in self-defence in respect of the first charge, (being the punch directed to Casino officer Orlandi), every subsequent violent act by the appellant should similarly be found to be in self-defence. The test articulated above requires the Court to examine all the circumstances, and in the current case those circumstances were changing.
At the time the appellant struck Casino officer Cole with her cardigan, she was the subject of lawful arrest. I accept the respondent’s submission that the conduct was not the product of any perceived need to act in self-defence but rather, in lashing out with her cardigan at the Casino officer, the appellant was motivated by frustration, anger and retribution.
Even if I were wrong in the appellant’s perception, applying Zecevic above, it would be very rare that the circumstances of a lawful arrest provides objectively reasonable grounds for resorting to violence. The appellant was not, at that point, physically restrained, and so cannot objectively be seen as attempting to free herself. Nor could the use of a cardigan against an officer not involved in any restraint of the appellant’s sister be viewed objectively as a reasonable attempt to free her sister.
As for the first bite of Casino officer Feain’s arm, again, it is to be doubted that at the time the appellant so conducted herself, she held any subjective perception that she needed to act to defend either herself or her sister. The appellant’s evidence in the court below was that she denied biting Casino officer Feain on this first occasion, but the CCTV reveals otherwise, as found by the magistrate.
However, even if the appellant perceived that she needed to bite the Casino officer in her own defence or that of her sister, there are no objectively reasonable grounds for the appellant conducting herself in this way. First, the Casino officer that was bitten was not involved in any physical restraint of the appellant’s sister. Second, the appellant created the situation where she became physically restrained through her previous conduct and the CCTV footage shows that the ongoing restraint of the appellant was entirely measured and proportionate to the appellant’s conduct. The biting of a Casino officer while lawfully restrained was clearly a continuing act of the appellant’s aggression, not an objectively reasonable ground for her own defence. There was no error in the magistrate finding that self-defence had been negated beyond reasonable doubt with respect to the first bite.
Ground 3 – Should certain evidence obtained pursuant to the unlawful arrest have been excluded?
The appellant’s argument was that evidence obtained as a result of her being unlawfully detained should have been excluded, pursuant to s 138 of the Evidence Act 2011. As I have found that the appellant was lawfully detained, there is no substance to this ground.
Ground 4 – in all of the circumstances, was each finding of guilt unsafe and unsatisfactory?
The appellant relied upon the same arguments as those made in relation to grounds 1 and 2 to argue that each finding of guilt was unsafe and unsatisfactory.
The test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
The same principle applies where the fact finder is a judge rather than a jury. I have already found that there was sufficient evidence for the magistrate to conclude beyond reasonable doubt that the appellant was lawfully detained and that she was not acting in self-defence. There being no other arguments as to the reasoning or finding of the magistrate, this ground is also not made out.
Conclusion
For the above reasons, the orders of the Court are as follows:
(1) The appeal is dismissed and the orders of Magistrate Morrison are confirmed.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: 4 June 2019 |
13
9