Gaskin v Police - [2009] SASC 351

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
GASKIN v POLICE
[2009] SASC 351
Judgment of The Honourable Chief Justice Doyle
20 November 2009
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - OTHER OFFENCES
Appellant convicted by a Magistrate of failing to comply with a direction given to her by the police in relation to a requirement that she submit to a breath analysis test, an offence against s 47E(3) of the Road Traffic Act 1961 (SA) (RTA) – s 47E(4)(ab) provides a defence to an offence against s 47E(3) if the person was not allowed the opportunity to comply with the direction after having been given the 'prescribed oral advice' – prescribed oral advice contained in regulations – prescribed oral advice not given to appellant – whether s 47E(4)(ab) requires the prescribed oral advice to be given in relation to all directions or only those to which the content of the advice is relevant – appeal against conviction.
HELD: the RTA directs the reader to the Regulations to determine whether the failure to comply with the relevant direction is one that attracts the obligation to give the prescribed oral advice – s 47E(ab) leaves it to the drafter of the prescribed oral advice to determine, through the content of the advice, which directions attract the prescribed oral advice – in the circumstances, there was no obligation to give the prescribed oral advice – appeal dismissed.

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - POWERS OF ARREST - STATUTORY POWERS
Appellant convicted by Magistrate of three other offences which arose out of the arrest by police of the appellant in relation to the offence against s 47E(3) – whether there can be "reasonable cause to suspect" a person of having committed an offence for the purposes of s 75 of the Summary Offences Act 1953 (SA) if the arrest is based on a mistaken view of the law.
HELD: of itself, the dismissal of the charge upon which a person is arrested has no implication for the lawfulness of the arrest – nothing in the terms of s 75 to suggest that it cannot operate on a state of mind that includes a mistake of law – a police officer can have reasonable cause to suspect a person of having committed an offence, even though the suspicion rests on a mistaken view of the law – appeal dismissed.
Criminal Code (Qld) s 546; Criminal Law Consolidation Act 1935 (SA) s 15(1), s 15(4), s 20(3); Road Traffic Act 1961 (SA) s 47E(1), s 47E(2), s 47E(2d), s 47E(3), s 47E(4)(ab), s 47E(4)(b); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8B, Sch 1AA; Summary Offences Act 1953 (SA) s 6(2), s 75, referred to.
Police v Grosev (2006) 246 LSJS 251, applied.
Coleman v Power (2004) 220 CLR 1; George v Rockett (1990) 170 CLR 104; Ruddock v Taylor (2005) 222 CLR 612; Police v Dafov (2008) 102 SASR 8; Veivers v Roberts; ex parte Veivers [1980] Qd R 226, discussed.
Moore-McQuillan v Police (1998) 196 LSJS 175; Percy v Hall [1997] QB 924, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"reasonable cause to suspect"

GASKIN v POLICE
[2009] SASC 351
Magistrates Appeal: Criminal

DOYLE CJ: Ms Gaskin was charged on an Information filed in the Magistrates Court with one count of failing to comply with a direction given to her by a member of the police force in relation to a requirement that she submit to a breath analysis test, an offence against s 47E(3) of the Road Traffic Act 1961 (SA) (“the RTA”). Ms Gaskin was further charged with one count of resisting members of the police force in the execution of their duty, an offence against s 6(2) of the Summary Offences Act 1953 (SA) (“the SOA”). This was, in effect, a charge of resisting arrest. The Information also charged Ms Gaskin with two counts of intentionally applying force to a person, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The Information alleged that each offence was aggravated by reason of her knowledge that it was committed against a member of the police force acting in the course of official duty. The Information also charged Ms Gaskin with one count of driving while having in her blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the RTA.
Ms Gaskin pleaded guilty to the offence of driving while having present in her blood the prescribed concentration of alcohol. She pleaded not guilty to the other four offences. After a trial, a Magistrate found Ms Gaskin guilty of the offences to which she had pleaded not guilty. She appeals against the Magistrate’s findings of guilt on each of the four counts.
She argues that the Magistrate was bound to find that she had a defence to the offence against s 47E(3) of the RTA. She argues that her failure to comply with the direction was not an offence because the giving of the direction was not followed by the giving of “the prescribed oral advice”. I will explain this later. Alternatively, she argues that she had “good cause” for failing to comply with the direction, giving rise to a defence under s 47E(4)(b). Her subsequent arrest related to the offence against s 47E(3) and was, she argues, unlawful, because the police did not have reasonable cause for suspecting that she had committed an offence against s 47E(3). Accordingly, she argues that she is not guilty of the offence of resisting arrest. As the other two counts flow from that arrest, she argues that the conduct the subject of the other two counts amounted to acts of self defence, so that a defence to those counts existed under s 15 of the CLCA. None of these issues were raised before the Magistrate.
In relation to the charge of resisting arrest, she argued that the Magistrate overlooked inconsistencies in the police evidence in finding that the police told Ms Gaskin that she was under arrest. In relation to the two counts of intentionally applying force, she argues that the Magistrate erred in finding that Ms Gaskin bit the two police officers, this being the application of force relied on.
The appeal raises an issue under s 47E of the RTA that is of considerable practical importance.
Background
Ms Gaskin was driving home with a friend after visiting her sister. Ms Gaskin was upset, as she had recently learnt that a close friend had committed suicide. She and others had been discussing her friend’s death. Ms Gaskin consumed a quantity of alcohol at her sister’s house.
While Ms Gaskin was driving on Grand Junction Road about 9 pm that evening, two police officers, Constables Johnson and Ager, directed Ms Gaskin to stop. Constable Johnson required Ms Gaskin to submit to an alcotest. It returned a positive result. Ms Gaskin was told that she would have to accompany the officers to a nearby police station for further testing. Ms Gaskin asked that her dog, which was travelling with her in her car, be allowed to accompany her to the police station. The officers arranged for a cage car, a police vehicle capable of transporting dogs, to attend to enable Ms Gaskin’s dog to be taken to the police station.
The cage car soon arrived. Ms Gaskin ushered her dog into the rear of the cage car, and got in herself. Constable Johnson told Ms Gaskin to get out of the car. At first, Ms Gaskin refused, but eventually got out of the car after Constable Johnson told her that she would be arrested. The dog followed Ms Gaskin out of the car.
In evidence, Constable Johnson said that after Ms Gaskin got out of the car, Constable Johnson advised her that she was under arrest for failing to comply with a direction.
Ms Gaskin dropped to her knees, and grabbed hold of the dog’s collar. The officers present asked Ms Gaskin to let go of the dog. She refused to do so. A struggle ensued. Ms Gaskin held onto the dog’s collar tightly. The officers were unable to separate Ms Gaskin from the dog.
During the course of the struggle Constable Ager pulled Ms Gaskin’s thumb back in an attempt to force her to release her grip of the dog’s collar. Ms Gaskin found this painful. The prosecution case was that she bit Constable Ager. He released his grip of her thumb. As he pulled away from her, it was alleged that she bit his thumb.
Ms Gaskin released the dog. The officers attempted to handcuff her. She freed one of her arms and grabbed the dog’s collar again. Another officer who had arrived with the cage car, Sergeant Stephen, pulled back on her thumb in the same manner as Ager had done earlier. He gave evidence that, at that point, Ms Gaskin bit his right upper arm. He released Ms Gaskin who was then handcuffed.
Ms Gaskin denied that she had bitten anyone. She gave evidence that when Constable Ager pulled back on her thumb, she put her mouth on his forearm and threatened to bite him, but she did not clench her teeth. She gave evidence that she was only told that she was under arrest during the struggle with the police, and not immediately after she got out of the cage car.
It is common ground that none of the officers present at any stage gave Ms Gaskin what is referred to in s 47E(4)(ab) of the RTA as the “prescribed oral advice”.
The Magistrate accepted the evidence of the police officers. She rejected Ms Gaskin’s evidence when it conflicted with evidence of the police officers on crucial issues. The Magistrate found all charges proved. She accepted that Ms Gaskin’s conduct was attributable to her consumption of alcohol, her attachment to her dog, and to her being upset about her friend’s death.
Appeal issues
Section 47E of the RTA provides relevantly as follows:
47E   Police may require alcotest or breath analysis
(1)     Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a)is driving, or has driven, a motor vehicle; or
(b)is attempting, or has attempted, to put a motor vehicle in motion; or
(c)is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2)     A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
(2a)   A person must forthwith comply with a direction under subsection (2).
…
(2d)   The performance of an alcotest or breath analysis commences when a direction is first given by a police officer that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis.
…
(3)     A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.
Penalty:
For a first offence – a fine of not less than $700 and not more than $1 200.
For a subsequent offence – a fine of not less than $1 500 and not more than $2 500.
…
(4)     It is a defence to a prosecution under subsection (3) that -
(a)the requirement or direction to which the prosecution relates was not lawfully made; or
(ab)the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i)the consequences of refusing or failing to comply with the requirement or direction; and
(ii)the person's right to request the taking of a blood sample under subsection (4a); or
(b)there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
The legally significant events began when Constables Johnson and Ager directed Ms Gaskin to stop her vehicle. That direction was given under s 47E(2).
Next came the requirement under s 47E(1) to submit to an alcotest.
The result of the alcotest was positive. Ms Gaskin was then required to submit to a breath test. This requirement was made under s 47E(1).
Several directions under s 47E(2) were then given to Ms Gaskin – not to consume any liquid, to remain with the police officers, and to accompany the police to a police station in due course.
The next legally significant event is the direction to Ms Gaskin to get out of the cage car, also given under s 47E(2). This direction, like the earlier ones, was “for the purpose of making a requirement … that a person submit to … a breath analysis”. This direction, and the earlier directions, were all for the purpose of the requirement to submit to a breath analysis, because they were directed to that end.
When Ms Gaskin refused to get out of the cage car, she failed to comply with the direction. That failure gave rise to the charge under s 47E(3).
Constable Johnson told Ms Gaskin that she would be arrested. When she got out of the cage car, Constable Johnson and other police officers tried to effect the arrest. The arrest was made under s 75 of the SOA. Section 75 provides as follows:
75 Power of arrest
A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.
Ms Gaskin’s resistance to being arrested and being handcuffed gave rise to the charge under s 6(2) of the SOA. This section provides:
6      Assaulting and hindering police
(1)     A person who assaults a police officer in the execution of the officer's duty is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2)     A person who hinders or resists a police officer in the execution of the officer's duty is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
…
(5)     In this section -
hinder includes disturb;
police officer includes a special constable.
The two counts under s 20(3) of the CLCA arose from Ms Gaskin biting Constable Ager and Sergeant Stephen.
Later, Ms Gaskin was required under s 47E(1) to submit to a breath analysis. This was after she was taken to a police station. She apparently complied. It should be noted that under s 47E(2d) the performance of the breath analysis does not commence until a direction is given to exhale into the breath analysing instrument. As Ms Gaskin complied, there was no cause for a charge under s 47E(3) in relation to the requirement that she submit to a breath analysis.
Mr Tremaine, counsel for Ms Gaskin on appeal, takes a number of points that were not taken at trial.
First, a point based on s 47E(4)(ab). He submits that Ms Gaskin had a defence to the charge under s 47E(3), because after she was directed to get out of the cage car, Constable Johnson did not give Ms Gaskin the prescribed oral advice required by s 47E(4)(ab) and Ms Gaskin was not given an opportunity to comply with the direction after being given the prescribed oral advice.
The prescribed oral advice is found through reg 8B of the Road Traffic (Miscellaneous) Regulations 1999, which refers to Schedule 1AA to the Regulations. The prescribed oral advice is as follows:
Schedule 1AA Prescribed oral advice
(Section 47E(4)(ab))
The second point is that Ms Gaskin did not comply with the requirement to get out of the cage car because she was upset, and so she had “good cause” for failing to comply, for the purposes of s 47E(4)(b).
The third point is that Constable Johnson had no reasonable cause to suspect, for the purposes of s 75 of the SOA, that Ms Gaskin had committed an offence of failing to comply with the direction, because the prescribed oral advice was not given, and so the arrest was invalid. It follows, he submits, that the police were not acting in the execution of their duty for the purposes of s 6(2) of the SOA.
The fourth point is that any resistance by Ms Gaskin to being arrested was lawful self defence for the purposes of s 15 of the CLCA, because the arrest was unlawful.
Mr Tremaine also contests the Magistrate’s finding that Ms Gaskin was told that she was being arrested, and the finding that Ms Gaskin bit the two police officers in question.
Consideration of appeal
There is no reason at all to reject the Magistrate’s findings of fact. They were open on the evidence. Mr Tremaine did not identify any sound basis for interfering.
Ms McDonald, counsel for the police on appeal, does not submit that the police have been prejudiced by Mr Tremaine taking the four points above on appeal, the points not having been taken at trial. I proceed on the basis that the prescribed oral advice was not given at any stage. There can be no real doubt about that, having regard to the evidence before the Magistrate.
I now turn to the first point.
The obligation to give the prescribed oral advice is created in an odd backhand way. Nowhere in s 47E or elsewhere does the RTA impose an affirmative obligation to give the prescribed oral advice. The obligation arises by inference and indirectly from the existence of a ground of defence which assumes the existence of an obligation to give the prescribed oral advice. It is this that gives rise to uncertainty as to the circumstances in which the obligation to give the prescribed oral advice arises.
Mr Tremaine submits that any direction under s 47E(2) must be followed by the prescribed oral advice. Or, more precisely, that a person cannot be convicted under s 47E(3) unless the prescribed oral advice has been given, and after that the person has been allowed a reasonable opportunity to comply with the requirement or direction.
If Mr Tremaine is correct, the prescribed oral advice should have been given after Ms Gaskin was directed to stop her vehicle. It should have been given after each of the other directions (not to drink, to remain with the police officers and so on). The failure to give the prescribed oral advice would mean that Ms Gaskin could not have been prosecuted for failing to comply with any of these directions and requirements. That is an odd result.
The terms of the prescribed oral advice, set out above, indicate that it relates to the performance of the breath analysis or alcotest, and in particular it relates to the obligation to exhale. The performance of the alcotest or breath analysis “… commences when a direction is first given by a police officer that the person concerned exhale …”: s 47E(2d).
The terms of the prescribed oral advice are relevant when considering whether and when the obligation to give the prescribed oral advice arises. If there is no prescribed oral advice in relation to refusing or failing to comply with a requirement or direction, there can be no obligation to give that advice. One must examine the terms of the prescribed oral advice to decide whether or not it relates to a refusal or failure to comply with the relevant requirement or direction. If, for example, the only prescribed oral advice was to the effect that “… before exhaling into the apparatus you must take three deep breaths …”, one would readily conclude that there was no prescribed oral advice in relation to, for example, a refusal or failure to comply with a direction to stop the driver’s motor vehicle, a direction not to consume fluids, or with a direction to remain in the presence of the relevant police officer. In other words, s 47E(4)(ab) leaves it to the drafter of the prescribed oral advice to determine, through the content of the prescribed oral advice, which requirements and directions under s 47E(2) attract the obligation to give the prescribed oral advice, if there is a failure or refusal to comply.

This is not a case of using a regulation to interpret or affect the meaning of the RTA. The RTA itself directs the reader to the Regulations to determine whether the refusal or failure to comply is one that attracts the obligation to give the prescribed oral advice. The question is whether the prescribed oral advice (having regard to the contents) relates to the refusal or failure in question.
The terms of the prescribed oral advice, set out above, make it clear that the prescribed oral advice is not in relation to the failure to comply with the direction that Constable Johnson gave to Ms Gaskin to get out of the cage car. It is not necessary to determine the directions and requirements to which the prescribed oral advice does relate. It appears to be directed towards directions and requirements made when an alcotest or breath analysis is about to be undertaken.
Accordingly, I do not accept Mr Tremaine’s submission. However, his submission highlights a deficiency in the drafting of the relevant provisions, which should be remedied by legislation. As things stand there is scope for uncertainty about the obligation to give the prescribed oral advice.
I turn to the second point. I can deal with it briefly. The fact that Ms Gaskin was upset at the time in question was not good cause for her refusal or failure to comply with the direction in question. Nor do I accept the factual premise of the submission. On the evidence, Ms Gaskin’s attachment to her dog was certainly an operative factor. So may have been her consumption of alcohol. In any event, I have no hesitation in rejecting the submission.
The third and fourth points are built on the first two points. As the first two points have failed, the appeal must be dismissed.
The third and fourth points, and the third in particular, raise some difficult issues of law. They were canvassed in the submissions before me. I do not need to decide them, but as the case may go further I should include my conclusion on them. I will do so as briefly as I can.
If the first of the four points above fails, and the second succeeds, it nevertheless follows that the appeal must be dismissed, except as to the count under s 47E(3). The fact that Ms Gaskin is found not guilty on the first count, the offence against s 47E(3) of the RTA, has no implications in itself for the validity of the arrest (see below), and so for the conviction on count two. The issue under s 75 of the SOA is whether the arresting officer or officers had reasonable cause to suspect Ms Gaskin of having committed an offence. They could have or hold that suspicion, even though Ms Gaskin is ultimately found to be not guilty of that offence. In my opinion, even if the relevant circumstances amounted to good cause to refuse to comply with the direction, I consider that the police officers had reasonable cause to suspect the commission of an offence. In the circumstances they were not in a position to weigh up the impact of Ms Gaskin’s friend’s suicide on her conduct, or to assess her reasons for failing to comply. In saying this I assume that Ms Gaskin’s attachment to her dog, and the consumption of alcohol, could not in any circumstances have amounted to good cause to refuse or fail to comply with the direction.
If Mr Tremaine’s first point succeeds, the position is more complex.
If, contrary to my conclusion, the obligation in s 47E(4)(ab) to give the prescribed oral advice was enlivened, Ms Gaskin has a good defence to the first count. The advice was not given.
Once again, this has no necessary implication for the conviction on count 2, for resisting members of the police force in the execution of their duty. The fact that a person has a good defence to a charge, and is later found not guilty, does not of itself impugn or invalidate the earlier exercise of a power to arrest for that offence: see Police v Grozev [2006] SASC 353; (2006) 246 LSJS 251 at [24]-[25] Doyle CJ; Moore-McQuillan v Police (1998) 196 LSJS 175 at 177 Duggan J.
The issue is whether Constable Johnson, when she arrested Ms Gaskin, had reasonable cause to suspect Ms Gaskin of having committed the offence of refusing or failing to comply with Constable Johnson’s direction to get out of the cage car.
As the High Court said in George v Rockett (1990) 170 CLR 104 at 112:
When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. …
That in turn raises the further question of whether Constable Johnson’s belief that an offence had been committed (it is not disputed that she did believe that the offence had been committed) was based on facts which were sufficient to induce the state of mind of reasonable grounds for that belief, in the mind of a reasonable person. That in turn leads to the further question of whether there could be reasonable grounds for a belief that an offence against s 47E(3) had been committed, if the belief was based on or included a belief (that was wrong in law) that in the circumstances there was no obligation to give the prescribed oral advice to Ms Gaskin in relation to her refusal or failure to get out of the cage car, and no obligation after that to allow her opportunity to comply with the direction to get out of the cage car.
In Grozev I reviewed a number of decisions bearing on this point. I was considering s 47E(1) of the RTA in its earlier form. Section 47E(1) then provided:
47E Police may require alcotest or breath analysis
(1) Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion –
(a)has committed an offence of a prescribed class of which the driving of a vehicle is an element; or
…
that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.
In that case the police officer required Mr Grozev to submit to an alcotest, believing that Mr Grozev had committed an offence against r 150(1) of the Australian Road Rules 1999. Later the police officer decided that he had made a mistake, and that the “correct offence” was against r 153 of the Australian Road Rules. The Magistrate who heard the matter decided that the police officer did not believe on reasonable grounds that an offence against r 150(1) had been committed, and so held that the police officer did not have authority to require Mr Grozev to submit to an alcotest. In Grozev I had to consider whether a mistaken belief as to a matter of law could be relied upon as a basis for a reasonable belief that an offence had been committed. I reviewed a number of decisions.
One of them was Veivers v Roberts; ex parte Veivers [1980] Qd R 226. There a police officer arrested a man for the offence of being, without lawful excuse, in an “enclosed yard” under certain Queensland legislation. The Court held that the place in question was not an “enclosed yard” and dismissed the charge of the offence in connection with which the man was arrested. There was a further charge of resisting a member of the police force in the execution of his duty. That raised the issue of whether the man could be convicted of resisting arrest on a charge of which he had been acquitted. The power of arrest was conferred by s 546 of the Criminal Code (Qld). It was a power to arrest if the police officer “believes on reasonable grounds that the offence has been committed, and that any person has committed it…”. DM Campbell J said at 228:
A constable may have reasonable grounds for believing that an offence has been committed although he is under a misapprehension as to the law. …
The other members of the Court agreed.
I considered also the English decision of Percy v Hall [1997] QB 924.
Having considered those decisions I then said:
[41]These decisions were referred to by two of the members of the High Court in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1. Mr Coleman was arrested and charged with certain public order offences. He was also charged with obstructing a police officer and assaulting a police officer in the execution of his duty. He challenged the validity of the legislation creating the public order offences with which he was charged. That challenge failed. However, a majority of the Court set aside certain of the public order convictions basing their decision on the proper interpretation of the legislation.
[42]Only two members of the Court found it necessary to consider the question of the lawfulness of the arrest.
[43]McHugh J (dissenting on this point) decided that the law under which Mr Coleman was arrested was invalid. The power of arrest, under s 35(1) of the Police Powers and Responsibilities Act 1997 (Qld) was a power to arrest “a person the police officer reasonably suspects has committed or is committing an offence …”. McHugh J referred to the decisions in Veivers and Percy v Hall. Without expressing a view on the decision in Veivers, although he appears to have treated it as correct, he distinguished the decision in Percy v Hall. He referred to an earlier decision of the High Court in Hazelton v Potter (1907) 5 CLR 445 and went on to say at [140]:
Section 35(1) of the Police Powers Act was not identical with the enactment considered in Hazelton. But in my opinion the principle on which that case was decided applies to the present case. Hazelton holds that a person cannot intend to execute a statutory instrument if the instrument does not exist. A fortiori, a person cannot have a reasonable suspicion that an offence has been committed under an enactment that does not exist. It is not reasonable to believe or suspect that a law exists when it does not. Ignorance of the law is ordinarily not an excuse for what is otherwise unlawful conduct. Fictional though it may be, everyone is presumed to know the law.
He added that when a law is invalid because it infringes a constitutional prohibition or immunity, it would be offensive to the Constitution to validate an arrest made under it: at [143]. It is clear that his conclusion was influenced by the fact that the law under which the arrest was made was invalid for constitutional reasons. In those circumstances, the law creating the offence did not “exist”.
[44]Kirby J found that the law was constitutionally valid, but narrower in its reach than the arresting police believed it to be. He also considered the lawfulness of the arrest. He acknowledged the force of the view expressed by McHugh J, but said that that view was not necessarily applicable when constitutional invalidity was not in issue. He said that the arrest was lawful. His conclusion appears from the following passage at [264]:
In the nature of their ordinary functions, police officers cannot wait for action until courts, months, or perhaps years later, have passed upon the legality of their conduct, often performed in fraught and urgent circumstances. They do not enjoy absolute immunity. Under the Police Powers Act they must demonstrate having “reasonable grounds for believing that an offence has been committed”. But if this is shown, the fact that it ultimately proves that the police officer is under a misapprehension as to the law, or has based the arrest “on an erroneous view of the law”, do not deprive that officer of the protection afforded by a provision such as s 35(1) of the Police Powers Act. (footnotes omitted)
In the omitted footnotes he refers to Veivers.
[45]Both McHugh J and Kirby J appear to have accepted the decision in Veivers as correct in principle, although not applicable, or arguably not applicable, when the law creating the offence for which the arrest is made is constitutionally invalid.
[46]In Ruddock v Taylor [2005] HCA 48; (2005) 79 ALJR 1534 the High Court had to consider s 189(1) of the Migration Act 1958 (Cth) which provided:
If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.
On two occasions Mr Taylor’s visa, on the basis of which he was permitted to remain in Australia, was cancelled by the Minister. After each cancellation Mr Taylor was detained in immigration detention. Each of the decisions cancelling his visa was quashed by an order of the High Court. Mr Taylor made a claim for damages for false imprisonment in respect of each period of detention. The Court held that the detention was not unlawful. The Court’s reasoning was that the lawfulness of Mr Taylor’s detention turned on s 189(1), and had to be separately considered from, and raised issues separate from, the unlawfulness of the exercise by the Minister of the power to cancel the visa. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) rejected a submission that the belief in question could not be considered reasonable if it was based on a mistake of law, the mistake of law being that Mr Taylor was an unlawful non-citizen. Callinan J took the same approach: at [228]-[229].
[47]The majority made the point at [39] that the issue was the construction of the word “reasonably” in particular, and that there was no constitutional reason to read the section as excluding a mistake of law. They said that there was nothing in the words of the Act itself that warranted the drawing of such a distinction: at [42]. They went on to say at [45]:
The second reason to reject the contention is that there would be many cases under s 189 in which a distinction between mistake of law and mistake of fact could not readily be drawn, if drawn at all. Reference to cases like Collector of Customs v Agfa-Gevaert Ltd provides ready illustration of the difficulties. Especially is that task difficult where, as here, the subject matter of the relevant suspicion is a statutory status – being an unlawful non-citizen. Errors about the conclusion cannot safely be divided between errors of law and errors of fact. Often, perhaps much more often than not, the error will be one of mixed law and fact. (footnote omitted)
They added at [46] that to draw such a distinction would cause “great uncertainty” about the extent of the obligation to detain a person.
In Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 McHugh J dissented. He concluded, after a careful consideration of the terms of the relevant statutory provision, that an officer of the Commonwealth could not have a suspicion, let alone a reasonable suspicion, within the meaning of the provision, “…when the suspicion is not based on facts but on the erroneous legal quality of certain facts known to the officer”: at [105]. He did not refer his decision in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1.
Kirby J also dissented. He said that had the case been one in which there was no constitutional head of power to support the law authorising the arrest, he would have held that any belief that a power of arrest existed could not amount to a reasonable belief: at [177]-[178]. He added at [180]:
[180]A "reasonable suspicion" within the meaning of s 189 does not cover a suspicion which is based on a mistake as to the legal validity of a ministerial decision. In this respect, the distinction between a provision that empowers or authorises a person to detain another (like s 189) and one that provides an immunity from liability, is critical. …
He went on to say that this was what distinguished the case from Coleman, apparently adhering to the view that he had expressed in Coleman.
I concluded that the ultimate question was one of construction of the relevant statutory provision, and that in the case of a provision like s 47E(1), there was no reason to assume as a starting point that a belief on reasonable grounds that an offence had been committed could not be based on or include a belief based on a mistake of law: Grozev at [48]-[49].
In Police v Dafov [2008] SASC 247; (2008) 102 SASR 8, Vanstone J, sitting in the Full Court, had cause to consider whether the power of arrest under s 75 of the SOA was available. A police officer arrested Mr Dafov for failing to answer certain questions, the failure to answer the questions being an offence under s 42(2) of the RTA. When the police officer asked the relevant questions, he was trespassing on Mr Dafov’s land, without any authority, as the Court found. All members of the Court held that accordingly the power to ask the relevant questions did not arise, and that the Magistrate had correctly dismissed the charge of failing to answer the questions. Vanstone J was the only member of the Court who considered whether, nevertheless, the arrest might have been valid. Vanstone J said at [87]-[88]:
[87]In my view, his belief that the offence had been committed was unreasonable, in that he should have known that, since he was a trespasser at the time the s 42 requests were made, the obligation to answer did not arise, and therefore no such offence had been committed. Lord Diplock said in Dallison v Caffery [1965] 1 QB 348 at 371:
The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause.
To put it another way, if the facts, as believed by the person making the arrest, amount in law to the offence for which the arrest is made, or at least justify holding the relevant suspicion, then the arrest is valid and the person making the arrest is protected against a suit for false imprisonment: Walker v Lovell [1975] 1 WLR 1141 at 1150-1151. (The discussion by McHugh J (in dissent) in the context of the situation where the statutory instrument creating the offence is invalid, in Coleman v Power (2004) 220 CLR 1 at 14‑15 is instructive on this issue.)
[88]It would seem that Dowsett’s mistake was as to whether, on the facts as he knew them to be, the respondent had committed an offence against s 42 RTA. This amounts to a matter of law. It follows that the arrest was unlawful. Whether liability in tort might have arisen at common law might raise additional issues.
It appears that Her Honour took the view that a reasonable belief could not be founded on a mistake as to a matter of law.
As I have said, no other member of the Full Court considered the point. It appears that the point had not been argued on the appeal: White J at [96].
In the circumstances, I consider that I am at liberty to adhere to the view that I expressed in Grozev. It does not follow that a mistake as to a matter of law will in all circumstances be capable of providing a basis for a reasonable ground to believe that an offence has been committed. As the cases discussed illustrate, a mistake as to the existence or validity of a law will probably be treated differently. In any event, one must always consider the particular circumstances of the case. I consider that for the purposes of s 75 of the SOA a police officer can have reasonable cause to suspect a person of having committed an offence, even though that belief or state of mind rests in part on a mistake of law.
Constable Johnson gave a direction in exercise of the power conferred by s 47E(2). Ms Gaskin did not comply with the direction. Constable Johnson believed that it was not necessary as a matter of law to give the prescribed oral advice. I am prepared to proceed on this basis, because it is clear, by inference, that that is the reason why the prescribed oral advice was not given. There is no reason to think that it was simply overlooked or deliberately not given. For present purposes I have to assume that Constable Johnson was wrong, that the prescribed oral advice should have been given, and that Ms Gaskin had a defence to the charge based on s 47E(3).

Although it can be said that, on the present hypothesis, Constable Johnson’s state of mind was infected by an error of law, another way of putting it is to say that the case is one in which Ms Gaskin had available to her a defence under s 47E(4)(ab), which on presentation of the case to the Court was found to be soundly based. This was a defence which it was incumbent upon Ms Gaskin to raise, as she did but only on appeal.
I have come to the conclusion that, even if I am wrong on the first point, Constable Johnson did have reasonable cause to suspect that Ms Gaskin had committed the offence in question. The fact that Constable Johnson’s belief or state of mind may have included a mistaken belief on a matter of law, namely, the construction of s 47E(4)(ab), does not preclude a conclusion that she had reasonable cause to suspect Ms Gaskin of having committed an offence.
There is nothing in the terms of s 75 of the SOA to suggest that it cannot operate on a state of mind that includes a mistake of law. There are sound reasons for taking the contrary approach. Constable Johnson reasonably believed that Ms Gaskin had refused to comply or had failed to comply with a direction given under s 47E(2). The direction was a valid and lawful direction. As it turns out, on the present hypothesis, Ms Gaskin has available to her a defence to the charge for which she was arrested, and Constable Johnson at the relevant time was unaware of the availability of that defence. She was unaware because of a mistake or misunderstanding on a matter of law. The mistake arises from a misunderstanding of the meaning of a statutory provision which, even if my conclusion as to its meaning is wrong, cannot be said to be clearly expressed.
For those reasons, I consider that the conviction on count 2 for resisting members of the police force in the execution of their duty should stand, even if the conviction on count 1 for failing to comply with a direction should be set aside. It follows that the convictions on count 3 and count 4 should stand.
If I am wrong in that, it becomes necessary to consider whether the convictions under s 20(3) of the CLCA should be set aside, on the grounds that Ms Gaskin was acting in self defence. This argument is raised on the hypothesis that Ms Gaskin’s arrest was unlawful. I propose to deal with this issue very briefly.
By s 15(1)(a) of the CLCA it is a defence to a charge if the defendant “…genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose…” and the conduct was reasonably proportionate to the threat that the defendant genuinely believed to exist. Section 15(4) provides:
(4)However, if a person—
(a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
In my opinion this is a case in which Constable Johnson was purporting to exercise a power of arrest, and so Ms Gaskin could not be taken to be acting for a defensive purpose, unless she genuinely believed on reasonable grounds that Constable Johnson was acting unlawfully. Ms Gaskin did give evidence to the effect that she believed she was acting in self defence. However, there was no evidence to support a finding that Ms Gaskin genuinely believed on reasonable grounds that Constable Johnson was acting unlawfully.
For those reasons, even if I am wrong in relation to count 1 and count 2, the convictions on count 3 and count 4 should stand.
For all those reasons the appeal against conviction must be dismissed.