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

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.

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

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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jason Luke McDevitt v Akira Dowling

Details

AGLC: Jason Luke McDevitt v Akira Dowling [2014] ACTMC 1
Case: [2014] ACTMC 1
Decision Date: 28 February 2014

CaseChat Overview and Summary

Jason Luke McDevitt has brought a case against Akira Dowling in the Supreme Court of the Australian Capital Territory. The case revolves around an incident where McDevitt was arrested and subsequently escaped from lawful custody. Dowling, a police officer, was involved in the arrest and the subsequent pursuit and recapture of McDevitt. McDevitt's primary contention is that the pursuit and recapture were unlawful, with specific arguments regarding the interpretation of legal terms such as "commit or committing an offence" and the applicability of certain sections of the Crimes Act 1900 (ACT).

The court was required to decide on the meaning of "commit or committing an offence" within the context of the Crimes Act 1900 (ACT) and whether a breach of bail conditions constitutes an offence against the Territory. The interpretation of these terms was critical, as it determined whether McDevitt's escape could be legally classified as an offence and if the pursuit by Dowling was justified under the law. Additionally, the court needed to consider whether the officer's actions during the recapture were within the scope of the law.

The Supreme Court held that the term "commit or committing an offence" should be interpreted broadly, encompassing not only the actual perpetration of a crime but also actions that facilitate or lead to the commission of a crime. This interpretation aligns with the intent of the legislation to prevent individuals from evading lawful arrest. The court further found that a breach of bail conditions is indeed an offence against the Territory, which justifies the pursuit and recapture of the individual. Consequently, the officer's actions in pursuing and recapturing McDevitt were deemed lawful under the circumstances. The court's reasoning underscored the necessity of maintaining public safety and ensuring that individuals who attempt to evade lawful custody are held accountable.

The final orders of the court were to dismiss McDevitt's claims, confirming that the officer's actions were within the legal framework and did not constitute an unlawful pursuit or arrest. The decision reinforces the importance of adhering to legal processes and the consequences of attempting to escape from lawful custody.

Orders