Foulkes v Coles
[2017] ACTSC 178
•3 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Foulkes v Coles |
Citation: | [2017] ACTSC 178 |
Hearing Date: | 3 July 2017 |
DecisionDate: | 3 July 2017 |
Before: | Murrell CJ |
Decision: | On the charge of obstructing a Territory public official, the appeal is allowed and a verdict of not guilty is entered. On the charges of assault and assault occasioning actual bodily harm, the appeal is allowed, the convictions are set aside and the proceedings are remitted for further hearing. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction – assault police officers – obstructing a public official – resist arrest – power to enter premises without warrant to arrest appellant for breach of bail – whether power to arrest for suspected commission of offence extends to power to arrest for breach of bail – whether exception applied – whether practicable to arrest appellant at another time – arrest unlawful |
Legislation Cited: | Bail Act 1992 (ACT) s 56A Crimes Act 1900 (ACT) ss 212, 220 Magistrates Court Act 1930 (ACT) pt 3.10, ss 208(1)(b), 214, 218 |
Cases Cited: | Coco v The Queen (1994) 179 CLR 427 Glanville v Harris [2017] ACTSC 110 Wong v Director of Public Prosecutions [2005] NSWSC 129; 155 A Crim R 37 |
Parties: | Laura Foulkes (Appellant) Stephen Coles (Respondent) |
Representation: | Counsel Mr J Moffett (Appellant) Ms K McCann (Respondent) |
| Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 19 of 2017 |
Decision under appeal: | Court: ACTMC Before: Magistrate Fryar Date of Decision: 20 February 2017 Case Title: Coles v Foulkes Court File Numbers: CC 3508 of 2016; CC 3509 of 2016; CC 2215 of 2017 |
MURRELL CJ:
By notice filed on 16 March 2017, the appellant appealed against convictions recorded by Magistrate Fryar (the Magistrate) on 20 February 2017 for offences of common assault, assault occasioning actual bodily harm and obstructing public officials (police) in the execution of their duty.
The sole ground of appeal was that the Magistrate erred in finding that the appellant had been lawfully arrested.
The appellant contended that her Honour’s finding was based on an erroneous interpretation of s 212 of the Crimes Act1900 (ACT) (Crimes Act) and/or erroneous factual findings in relation to s 220(3) of the Crimes Act. The appellant argued she was not guilty of the offences that followed her unlawful arrest.
Facts
On 23 March 2016, the appellant was released on bail. One of the bail conditions was that she not contact NM, who had been her partner until 22 March 2016. Another condition was that she reside at the Narrabundah address that she shared with her brother and grandmother. After she was released on bail, the appellant repeatedly contacted and attempted to contact NM by telephone.
At approximately 11.40 pm on 23 March 2016, two police officers attended the Narrabundah address for the purpose of arresting the appellant for breach of bail. They knocked on the door. The appellant's brother answered the knock. He opened the timber door and spoke to the police, but left the screen door closed. When the police asked whether the appellant was present, he responded: "Yes. I'll go and get her for you." As he was walking towards the room in which the appellant was sleeping, the police opened the screen door and followed him inside to the appellant's bedroom. The police entered the bedroom, informed the appellant that she was in breach of her bail conditions and arrested her.
The appellant was conveyed to the police sedan. Initially she was compliant. However, once inside the sedan, she became aggressive.
As a consequence, the appellant was charged with assaulting one police officer, assault occasioning actual bodily harm to a second police officer and obstructing police in the execution of their duty.
Proceedings in the Magistrates Court
The appellant pleaded not guilty to the offences.
It was agreed that the proceedings should commence with a voir dire on the issue of whether the police were authorised to enter the premises for the purpose of arresting the appellant and that, if the matter proceeded as a defended hearing, the evidence given on the voir dire would be treated as evidence in the hearing.
10. At the conclusion of the voir dire, the Magistrate made the following findings:
(a)The police did not have a licence to enter the premises. Neither the fact that the appellant's brother had left the screen door unlocked, nor his failure to expressly refuse entry was a grant of leave or licence to enter the premises.
(b)Section 212 of the Crimes Act (which enables a police officer to arrest a person for an offence without a warrant if the officer suspects, on reasonable grounds, that the person has committed or is committing the offence and proceedings by way of summons would not achieve one of the purposes in s 212(1)(b) of the Crimes Act) extends to arrests without a warrant under s 56A of the Bail Act 1992 (ACT) (Bail Act) (which enables a police officer to arrest a person without warrant if the officer believes, on reasonable grounds, that the person has failed to comply with a bail condition). This is because the grant of bail always relates to an offence.
(c)The s 220(3) Crimes Act exception to the prohibition against effecting a s 212 arrest by entering a dwelling house between 9 pm and 6 am applied. It was open to the executing officer to form a belief, on reasonable grounds, that it would "not be practicable to arrest the [appellant], either at the dwelling house or elsewhere, at another time" as the officers could not be expected to wait on the doorstep of the premises until 6 am.
11. After the Magistrate found that the arrest was lawful, the appellant's legal representative stated that he "anticipate[d]" obtaining instructions to plead guilty based on that finding.
12. The transcript does not record the entry of a plea of guilty. Rather, after an adjournment, the appellant's legal representative (incorrectly recorded in the transcript as the prosecutor) indicated that there was no objection to the tendering of two statements of fact. He "invite[d]" the Magistrate to record convictions "to activate the offender's ability to appeal" the "preliminary issue". The relevant statement of facts contained assertions that supported convictions for each of the charges.
13. On the appeal, the appellant’s legal representative (who also represented her below) stated that he expected the indication that his client was pleading guilty to be treated as a formal entry of plea. It appears that the Magistrate was of the same view; her Honour noted each of the bench sheets “PG Convicted”.
The appeal
14. The appeal is under Part 3.10 of the Magistrates Court Act 1930 (ACT) (MCA). Section 208(1)(b) of the MCA enables a person convicted by the Magistrates Court to appeal to the Supreme Court. On such an appeal, the Supreme Court may receive additional evidence: s 214. The Supreme Court may confirm or reverse a conviction or may set it aside and remit the proceedings to the Magistrates Court for further hearing and decision subject to the directions that the Supreme Court considers appropriate: s 218.
15. The appeal is by way of rehearing and the Supreme Court must conduct a real and independent review of the evidence before the Magistrates Court, making due allowance for the advantages enjoyed by the lower court. The Supreme Court must determine whether the decision under appeal is infected by an error of law, reflects a wrong factual finding or results from an erroneous exercise of discretion. Where possible the Supreme Court should determine the correct judgment for itself: Peverill v Crampton [2010] ACTSC 79; Glanville v Harris [2017] ACTSC 110 at [5]–[7].
Issues on the appeal
16. The issues on the appeal were:
(a)Whether the appellant should be permitted to appeal the convictions because she entered pleas of guilty in the Magistrates Court;
(b)Whether the Magistrate made erroneous findings in relation to s 220(3) of the Crimes Act; and
(c)The appropriate disposition of the appeal.
Whether the appellant should be allowed to appeal
17. An unequivocal plea of guilty that is made freely and voluntarily is an admission of all essential elements of an offence and is final, subject to the discretion of the court to allow a change of plea before the matter is disposed of finally by way of sentence or otherwise: Maxwell v The Queen (1996) 184 CLR 501, 511 per Dawson and McHugh JJ; R v KCH [2001] NSWCCA 273; 124 A Crim R 233 at [94] per Ipp AJA (Sperling J agreeing). An offender may be permitted to change a plea of guilty if there are circumstances affecting the integrity of the plea as a true admission of guilt: R v Pakistan [2001] NSWCCA 49 at [7]; R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310 at [20]; Wong v Director of Public Prosecutions [2005] NSWSC 129; 155 A Crim R 37 at [36]–[37].
18. In this case, the appellant probably does not require leave to withdraw the pleas of guilty. Although the bench sheets record that pleas of guilty were entered, the transcript does not support the formal entry of pleas. Rather, it suggests that, without admission, the appellant agreed to the Magistrate making findings of guilt based on the statement of facts (not based on her pleas of guilty).
19. However, if leave is required to withdraw the pleas of guilty, it is given. From the outset, the appellant maintained the "defence" that her arrest was unlawful and that, as a consequence, the conduct that flowed from her arrest was not criminal. The appellant consented to the tender of the statement of facts to ensure that she was entitled to appeal as soon as possible against the finding that her arrest was lawful. She was not entitled to appeal under the MCA until she was "convicted". She accepted that the conduct had occurred but maintained that, given the circumstances in which it had occurred (i.e. following an unlawful arrest), she should not have been convicted of criminal offences. Consequently, to the extent that the appellant may have entered pleas of guilty, there are circumstances that strike at the integrity of the pleas and indicate that they were not intended to be a true admission that she was guilty of criminal offences (as opposed to having committed the conduct in question).
Section 220 of the Crimes Act
220 Power to enter premises to arrest offender
(2) Subject to subsection (3), if—
(a) an officer has the power under section 212 to arrest the person without warrant for an offence; and
(b) the offence is a relevant offence; and
(c) the police officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using the force that is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(3) A police officer shall not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the executing officer believes on reasonable grounds that—
(a) it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so to prevent the concealment, loss or destruction of evidence relating to the offence.
20. Section 220 of the Crimes Act empowers an officer who "has the power under s 212 to arrest [an offender] without warrant for an offence" to enter premises for the purpose of effecting the arrest. However, it prevents entry into premises between 9 pm and 6 am unless the executing officer forms a stated belief on reasonable grounds.
21. Section 220(2) was enacted because, in the absence of clear statutory authority to do so, a police officer who enters or remains on private property without the leave or licence of the occupier, commits a trespass: Coco v The Queen (1994) 179 CLR 427; Police v Dafov [2007] SASC 451; 102 SASR 1.
22. As stated above, the Magistrate found that the police arrested the appellant pursuant to both s 56A of the Bail Act and s 212 of the Crimes Act because, although the arrest under s 56A related to the appellant's failure to comply with a bail condition, it also related to an offence as bail always relates to an offence. On the appeal, the appellant did not seek to traverse this finding. The prosecution has not had the opportunity of considering whether it was correct. Consequently, the following observations are made only in passing and do not represent a concluded view on the topic.
23. An arrest under s 56A of the Bail Act differs from an arrest under s 212 of the Crimes Act. The belief that an officer must form to justify an arrest under s 56A of the Bail Act is quite different from the belief that an officer must form to justify an arrest under s 212 of the Crimes Act. An officer may form a genuine belief that a person has failed to comply with a bail condition, but be quite uninformed about whether the person has committed any particular offence.
24. Section 220(2) of the Crimes Act only provides statutory authority to a police officer to enter private property without the permission of the occupier for the purpose of effecting a s 212 arrest. Section 220(3) provides an exception to the s 220(2) statutory authority to commit what would otherwise be a trespass to effect a s 212 arrest. Section 220(2) does not provide statutory authority to a police officer to enter private property without the permission of an occupier to effect an arrest under s 56A arrest of the Bail Act and the Bail Act provides no statutory exception similar to that in s 220(3) for what would otherwise be a trespass.
25. Assuming (although, for the above reasons, doubting) that s 220(2) applied in the present circumstances, then the question for the Magistrate was whether the evidence showed that the executing officer formed the requisite s 220(3) belief on reasonable grounds. Inferentially, the Magistrate found that the executing officer did form a s 220(3) belief on reasonable grounds that it was, "not practicable” to arrest the appellant at her brother's home or elsewhere at another time.
26. That finding was not available because:
(a)There was no direct evidence that the executing officer harboured the requisite belief or that he addressed his mind to whether it was practicable to arrest the appellant at another time. Nor do the surrounding circumstances give rise to an inference that the attending police officers considered the relevant question and formed the requisite belief.
(b)There was no evidence suggesting that there were reasonable grounds for forming a belief that it was not practicable to arrest the appellant at another time. Pursuant to her bail conditions, the appellant was required to reside at the Narrabundah residence. That is where she was apparently residing. There was no reason to think that she would not have been there the following morning. There was no evidence (such as was available in Strano v Yates [2016] ACTSC 363) suggesting that she had no fixed abode. Indeed, the officers followed the appellant’s brother into the appellant’s bedroom without giving her the opportunity to come to the front door voluntarily, in response to her brother’s request. There was no evidence suggesting that the only real alternative to immediate arrest was for the police to wait on the doorstep until 6 am the following morning.
Disposition of the appeal
27. The respondent submitted that the appropriate disposition of the appeal was to remit it to the Magistrates Court for further hearing pursuant to s 218(1)(c) of the MCA because the finding of error did not entitle the appellant to an acquittal.
28. A distinction must be drawn between the charge under s 361 of the Criminal Code 2002 (ACT) (Criminal Code) of obstructing a Territory public official and the charges of assault. A person commits an offence against s 361 if they resist a public official (in this case, police officers) in the exercise of their function as a public official, knowing that they are a public official. Relevantly, it is an element of the offence that the police officer is exercising his or her functions as a police officer.
29. In relation to the charge of obstruct/resist a public official, the statement of facts speaks of events which took place after the appellant was taken to the police sedan and for a number of minutes thereafter. During this period, it is said that the appellant became violent and began to kick at the front seat of the sedan. When removed from the vehicle, the appellant rolled onto her stomach, grasping both hands under her torso, to prevent police from giving effect to their stated purpose of handcuffing her.
30. The facts relied upon relate to the continuation of an unlawful arrest. As the arrest was unlawful at the time of the resistance, the police were not lawfully exercising their functions as police. Consequently, the offence cannot be made out.
31. In relation to the charge of obstruct/resist a public official, the appeal is allowed, the conviction is set aside and a verdict of not guilty is entered.
32. In the Magistrates Court the defence case was not completed in relation to the convictions for assault and assault occasioning actual bodily harm. The appellant relied on self-defence and no evidence had been adduced in relation to that defence. Both parties may need to adduce further evidence in relation to the defence.
33. In relation to the charges of assault and assault occasioning actual bodily harm, the appeal is allowed. Each conviction is set aside and the proceedings are remitted to the Magistrates Court for further hearing and decision consistent with the above reasons.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 19 July 2017 |
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