Jason Luke McDevitt v Akira Dowling

[2014] ACTMC 1

JASON LUKE MCDEVITT V AKIRA DOWLING
[2014] ACTMC 1 (28 February 2014)

ATTEMPT TO ESCAPE FROM CUSTODY, ARREST OR DETENTION – subject of lawful arrest – meaning of commit or committing an offence – breach of bail conditions an offence against the Territory

Crimes Act 1900 (ACT) ss 160, 212 (1) (a)
Criminal Code 2002 (ACT) s 44
Bail Act 1992 (ACT) s56A (2)
Legislation Act 2001 (ACT) s139

Licciardello v R [2012] ACTA 16
PNJ v R [2009] HCA 6

No CC 10953 of 2013

Chief Magistrate: Walker
Magistrates Court of the ACT
Date: 28 February 2014

IN THE MAGISTRATES COURT OF THE         )
  )          No. CC 10953 of 2013
AUSTRALIAN CAPITAL TERRITORY               )

BETWEEN:JASON LUKE MCDEVITT

Informant

AND:AKIRA DOWLING

Defendant

DECISION

Magistrate:  Chief Magistrate Walker
Date:  28 February 2014
Place:  Canberra

1. The defendant is charged with an offence contrary to section 160 of the Crimes Act 1900 (ACT) by virtue of section 44 of the Criminal Code 2002 (ACT). The allegation is that she, on 27 November 2013, being a person who had been under arrest in respect to an offence under the law of the Territory attempted to escape from that arrest. The date is now properly corrected to 27 November, the charge originally being the 26th, and Ms Dowling has entered a plea of not guilty. Section 160 states:

The person who has been lawfully arrested, is in lawful custody, or is lawfully detained during pleasure, in respect of an offence against a law of the Territory, a State or another Territory and to escape from that arrest, custody or detention commits an offence.

2. The plea of not guilty is entered on the basis that the defendant contends that she was not the subject of lawful arrest “in respect of an offence against the law of the Territory”. 

The facts

3. The facts of the matter are agreed, I adopt those facts.  In short, the defendant was on bail in relation to other matters before this Court and was, as a condition of her bail, subject to the supervision of ACT Corrective Services.  She failed to attend appointments as directed.  This was considered a breach by her supervisor, and the matter was reported to the Australian Federal Police.
4. As a result, when a police officer happened across the defendant on 27 November 2013, he indicated to her that she was under arrest for breaching her bail conditions.  There was some questioning by the defendant as to what constituted the breach.  Following the arrest, the defendant ran off but was apprehended about 50 metres away.  There is no suggestion by the defence that the police officer acted other than in good faith based on information provided to him by ACT Corrective Services.

Submissions

5. The defence submits that the arrest was not lawful because it was non‑compliant with the provisions of section 212(1)(a) of the Crimes Act 1900 (ACT). That section makes provision for a police officer to arrest a person without warrant if the police suspect upon reasonable grounds, amongst other things, that a person has committed or is committing an offence and that a summons to attend court would not suffice. The defence submits that the police constable had no reasonable grounds to suspect that the defendant had committed or was committing an offence.
6. The defence relies for its submission on the decision of the ACT Court of Appeal in Licciardello v The Queen (2012) ACTCA 16, which states at paragraph 19:

For a person to be convicted of escape from arrest, it must be established as a necessary element of the offence that the arrest from which the person escaped was lawful.

7. In so stating, the Court was merely restating an element of the offence.  There is no interpretation inherent in this statement.  The prosecution agrees that Licciardello properly applies to these circumstances, however, it submits that the arrest of this defendant unlike that of Mr Licciardello was lawful. The police officer who arrested the defendant indicated in the verbal exchange with her that she was being arrested for breaching her bail conditions. The power to arrest for a breach of bail reposes in section 56A(2) of the Bail Act 1992 (ACT).
8. Subsection 56A(2)(a) provides that a police officer may arrest a person without warrant if the officer believes on reasonable grounds that the person has failed to comply with their bail conditions. The prosecution in its submissions addressed the issue of whether or not the defendant was arrested in respect of an offence against the law of the Territory, as is required by section 160 before the offence of escaping lawful custody is made out. The prosecution correctly concedes that the breach of bail or, perhaps, more specifically, the breach of a bail condition is not an offence against the law of the territory. However, the use of the phrase "in respect of", it is submitted, is broad enough to encapsulate an arrest for breach of a bail condition. The prosecution relies upon the definition of "in relation to" in the Legislation Act 2001 (ACT), which states:

"In relation to" includes the following:

(a) in respect of;
(b) with respect to;
(c) in connection with;
(d) in regard to;
(e) with reference to;
(f) relating to;
(g) for or with respect to.

9. In addition, the prosecution relies on section 139 of the Legislation Act, which requires that:

In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

10. The prosecution submits that s160 purports to create a broad offence relating to escape from lawful custody, arrest or detention, and that limiting it such that it applies only in relation to the time of arrest for an offence would exclude from the scope of criminality escapes in relation to arrest not only for breach of bail conditions but also for breaches such as those in relation to a condition of a good behaviour order, a periodic detention order or a suspended sentence order.

Consideration

11. I am persuaded that the arrest which the officer effected on this occasion was in relation to his powers pursuant to section 59A of the Bail Act 1992.  There being no challenge to the grounds upon which he made that arrest, I am satisfied that it was a lawful arrest.  There being no dispute as to the facts, I am satisfied that the defendant escaped from that lawful arrest.  The question in dispute is whether the arrest was in respect of an offence against a law of the territory.
12. I note the observations in PNJ v The Queen [2009] HCA 6, at paragraph 18, in which their Honours French CJ and Gummow, Hayne, Crennan and Kiefel JJ in considering the use of the phrase "in respect of" in considering a South Australian provision relating to taking into account time spent in custody in sentencing legislation, stated:

The question is whether the time in custody is "in respect of" (which is to say, is referable to) the offence in question.

13. In that case, time spent in custody in relation to an offence of wounding causing grievous bodily harm was considered by their Honours to be time spent in custody in respect to a later offence of murder arising out of the same facts.  This interpretation exemplifies the breadth of meaning attaching to the phrase. 
14. I accept the submissions made by the prosecution that "in respect of" is broad enough to encapsulate a breach of bail conditions imposed in relation to an offence against a law of the Territory. Both the definition provided in the Legislation Act and the requirement to apply a purpose of interpretation support that view.

Finding

15. I therefore find the offence proved. 

I certify that the preceding
Fifteen (15) paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Magistrate Walker.

Associate: Amy Winner
Date: 5 March 2014

Solicitor for the Prosecution:  Mr K Lee
Director of Public Prosecutions ACT
Solicitor for the Defendant:  Ms H Cory
Legal Aid ACT
Date of hearing:  28 February 2014
Date of judgment:  28 February 2014