Johnson v Reeves
[2004] TASSC 110
•24 September 2004
[2004] TASSC 110
CITATION: Johnson v Reeves [2004] TASSC 110
PARTIES: JOHNSON, Lorinda Julene
v
REEVES, Robert Gordon
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 58/2004
DELIVERED ON: 24 September 2004
DELIVERED AT: Hobart
HEARING DATES: 24 September 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Warrants, arrest, search, seizure and incidental powers – Arrest and detention – Effecting arrest – Informing person arrested of fact and reason – Whether "practicable" – Evidence that arrested person would not have heard spoken words.
Criminal Code (Tas), s301(2)
Tims v John Lewis & Co Ltd [1951] 2 KB 459, referred to.
Aust Dig Criminal Law [632]
REPRESENTATION:
Counsel:
Applicant: S J Bender
Respondent: A Mignot
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2004] TASSC 110
Number of Paragraphs: 13
Serial No 110/2004
File No LCA 58/2004
LORINDA JULENE JOHNSON v ROBERT GORDON REEVES
REASONS FOR JUDGMENT BLOW J
(DELIVERED ORALLY) 24 September 2004
This is a motion to review in respect of the dismissal of two charges alleging offences contrary to the Police Offences Act 1935. The respondent was charged with four offences contrary to that Act. The prosecution case was essentially as follows. Two police officers called at a residence and knocked at the front door. The respondent came out and pushed one of the officers, Constable Butler, thereby committing the offence of assaulting a police officer in the execution of his duty (Count 1). The respondent ran into the street where he began yelling and screaming at the top of his voice, jumping around, and trying to incite the police officers to fight him, thereby committing the offence of disorderly conduct, contrary to the Act, s13(1)(c) (Count 4). He was approached by the police officers for the purpose of arresting him and taking him away. He resisted Constable Butler by kicking out at him, trying to punch him, putting his legs out, and trying to stop him from placing him in the divisional van, thereby committing the offence of resisting a police officer in the execution of his duty, contrary to the Act, s34B(1)(a)(i) (Count 3). The respondent was taken in the divisional van to the Hobart Police Station where he spat mucus and saliva in the mouth and eyes of Constable Butler, thereby committing the offence of assaulting a police officer in the execution of his duty, again, contrary to the Act, s34B(1)(a)(i) (Count 2).
The learned magistrate convicted the respondent of the first two offences, being counts 1 and 4, but acquitted him of the second pair of offences, that is, counts 3 and 2. She found all the allegations as to the respondent's conduct proven, but she was not satisfied beyond reasonable doubt that Constable Butler had been acting in the execution of his duty at the times that counts 3 and 2 related to. In particular, she was not satisfied beyond reasonable doubt that the arrest of the respondent had been lawful.
The officers were certainly entitled to arrest the respondent for committing the offences that were the subject of counts 1 and 4 ¾assaulting Constable Butler and disorderly conduct. The question arose, though, whether the arrest was unlawful as a result of the reasons for the arrest not having been stated to the respondent. The Criminal Code, s301(2), provides as follows:
"(2) It is the duty of a person arresting another, whether with or without warrant, to give notice, if practicable, of the process or warrant under which he is acting, or of the cause of the arrest."
The evidence indicated that the cause of the arrest had not been stated to the respondent. The question therefore arose whether it had been proved beyond reasonable doubt that it was not practicable for the arresting officers to tell the respondent, at the appropriate time, of the cause of his arrest. The prosecutor needed to prove beyond reasonable doubt that the arrest was lawful, and therefore needed to prove beyond reasonable doubt either that the cause of the arrest was stated to the respondent at an appropriate time or, alternatively, to prove that for one or more reasons it was not practicable to inform the respondent of the cause of the arrest at the time of the arrest. It seems that the need to lead evidence relevant to such issues may well have escaped the prosecutor.
The learned magistrate dealt with the relevant issues in her reasons, saying the following:
"For the prosecution to prove both counts, I must find that the defendant was at the time when the offences occurred in lawful custody so that Constable Butler was acting pursuant to a continuing lawful duty. A person will not be in lawful custody if the initial arrest is unlawful. The evidence regarding the process of the arrest is only from Constable Hinchen. He stated that, after the defendant was behaving in the fashion described, both officers moved on him and at the same time tried to restrain him, each officer taking one of the defendant's arms. Constable Hinchen, as I stated, wavered in his evidence about which of them told the defendant he was under arrest. Eventually he said he thought both of them said to the defendant words 'You are under arrest'. There was no evidence on the prosecution case that the defendant was informed of any reason for his arrest. Pursuant to s301 of the Criminal Code, it is the duty of a person arresting another without a warrant in this case to give notice if practicable of the cause of the arrest. No evidence was given by the prosecution witnesses as to why it was not practicable to give reasons for the arrest. It is submitted by the prosecution that the circumstances of the disorderly behaviour was such that it was not practicable to inform the defendant. I do not accept that this was the case. Having used the words 'You are under arrest', there was no reason why the words 'for disorderly conduct' or 'for assault' could not have been added. If there was a reason why they couldn't have been added, it wasn't given in evidence."
It was as a result of that reasoning that the learned magistrate dismissed the two charges that are the subject of this motion.
Counsel for the applicant has submitted that it was unnecessary for either of the police officers to inform the respondent of the reason for his arrest because it was obvious that he was being arrested as a result of his conduct after their arrival. I reject that submission. The police officers obviously went to the door of the property for a reason. For all the respondent knew, they might have come there to arrest him as a result of something he had previously done or was alleged previously to have done. He certainly behaved as if that were the case. In my view, it was not obvious at all that the reason for the arrest was some aspect of his conduct after the arrival of the officers.
Counsel for the applicant also submitted that it was not practicable for the respondent to be informed of the cause of his arrest because his conduct made informing him of the cause of his arrest impossible. I reject that submission for the same reasons that the learned magistrate dismissed the charges. If it was practicable for one of the officers to tell the respondent that he was under arrest, it was equally practicable for that officer to add the words "for assault" or "for assaulting police" or "for assaulting me" or "for disorderly conduct".
However I do see merit in the third ground of appeal that has been argued this morning. That ground, which was added by an amendment, reads as follows:
"That the learned magistrate erred in fact and/or in law in that she failed to place due regard upon the respondent's admission that the police officers may have advised him he was under arrest but he would not have heard it."
That ground refers to a passage in the evidence that the respondent gave before the learned magistrate. He was asked:
"Do you recall the police officers ever saying words to the effect of 'You're under arrest' to you?"
He replied:
"No I can't remember that. They could have said it. But I wouldn't have heard it. There was too much. Probably me. 'Leave me alone and me eyes are burning out'. I probably wouldn't be able to hear myself at that time after I felt me eyes go."
He was referring to the fact that Constable Butler, in the course of effecting the arrest, sprayed the respondent with OC spray after it became apparent that the respondent might be going to spit towards his face ¾ something that the respondent did not do then, but did do later at the police station, according to the comments of the learned magistrate.
This ground raises the question of what the word "practicable" means in the Criminal Code, s301(2). Is it ever "practicable" for an arresting officer to inform a person of the cause of that person's arrest if for some reason that person will not hear or will not understand? In the context of the common law, a similar question was considered in England in Tims v John Lewis & Co Ltd [1951] 2 KB 459. In that case, Lord Goddard CJ considered the decision of the House of Lords in Christie v Leachinsky [1947] AC 573, and said the following at 467:
"I do not think that the decision of the House of Lords means that if an officer is arresting a deaf person, he has to possess himself of an ear-trumpet, or something of that sort, or shout at the top of his voice. He must do what a reasonable person would do in the circumstances. As I said during the course of the argument, if a police officer who is not able to speak French has to arrest a Frenchman who does not speak English, he can only tell him in English for what he is arresting him, and take him to the police station until some officer who does speak the language or some interpreter comes to explain the charge on which he has been arrested to the person arrested. In stating the charge or on suspicion of what crime a person is arrested, the person arresting without warrant has only to act reasonably."
Having regard to the sorts of situations contemplated by Lord Goddard CJ in that case, it is my view that, if it is pointless to inform or attempt to inform an arrested person of the cause of the arrest, it is not "practicable" to do so within the meaning of s301(2).
The learned magistrate did not consider the question whether it was pointless for the arresting officers to inform the respondent of the cause of his arrest. With the benefit of hindsight and the opportunity to consider the authorities, I think that she should have, and that she erred in not considering the question of pointlessness. I therefore think that the appropriate course is to allow the motion to review and to remit the matter to the Magistrates Court for the re-determination of the matter, preferably by the learned magistrate. I understand that her appointment is a temporary one and that it will expire next Friday. I understand that it would be convenient for this matter to come before her next Wednesday. In case for some reason the respondent does not attend, or the learned magistrate cannot deal with the matter before her appointment expires, I will not make an order that the matter be dealt with by her. I will make orders that permit the matter to be dealt with by her.
My orders are therefore as follows:
1 That the motion to review be allowed.
2 That the orders dismissing counts 2 and 3 on complaint 25146/03 be set aside.
3 That those counts be remitted to the Magistrates Court for determination according to law.
4 That the respondent appear at the Magistrates Court at Liverpool Street, Hobart on 29 September 2004 at 10am.
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