Licciardello v The Queen
[2012] ACTCA 16
•April 4, 2012
Alfio Licciardello v The Queen [2012]
ACTCA 16 (4 April 2012)
PRACTICE AND PROCEDURE – whether appellant bound by his conduct at trial – whether appellant prevented from appealing his conviction on new grounds on appeal
CRIMINAL LAW – whether officer held requisite suspicion so as to effect lawful arrest – whether appellant was physically placed under arrest – whether appellant in lawful custody
Crimes Act 1900 (ACT), ss 160, 212
Hill v The Queen [2011] ACTCA 5
Jovic v Lamont [2007] NSWCA 47
Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia (2002) Aust Torts Reports 81-636
Michaels v The Queen (1995) 184 CLR 117
R v Templeton [1956] VLR 709
Warren v Coombes (1979) 142 CLR 531
Donaldson v Broomby (1982) 40 ALR 525
DPP v Carr (2002) 127 A Crim R 151
Alderson v Booth [1969] 2 QB 216
R v O’Donoghue (1988) 34 A Crim R 397
Wilson v New South Wales (2010) 278 ALR 74
Holgate-Mohammed v Duke [1984] AC 437
R v Goodwin [1993] 2 NZLR 153
Eatts v Dawson (1990) 21 FCR 166
R v Hill [2012] ACTSC 17
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 39 – 2011
No. SCC 55 of 2010
Judges: Higgins CJ, Penfold and Cowdroy JJ
Supreme Court of the ACT
Date: 4 April 2012
IN THE SUPREME COURT OF THE )
) No. ACTCA 39 - 2011
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 55 of 2010
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ALFIO LICCIARDELLO
Appellant
AND: THE QUEEN
Respondent
ORDER
Judge: Higgins CJ, Penfold and Cowdroy JJ
Date: 4 April 2012
Place: Canberra
THE COURT ORDERS THAT:
The conviction of the appellant on the charge that he, being a person in lawful custody, escaped from that arrest, be set aside, and a verdict of not guilty in respect of that charge be entered.
IN THE SUPREME COURT OF THE )
) No. ACTCA 39 - 2011
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 55 of 2010
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ALFIO LICCIARDELLO
Appellant
AND:THE QUEEN
Respondent
Judge: Higgins CJ, Penfold and Cowdroy JJ
Date: 4 April 2012
Place: Canberra
REASONS FOR JUDGMENT
THE COURT
The appellant appeals from the orders of Nield AJ (“the trial judge”’) made on 29 June 2011 which provided as follows:
1.Accused convicted of the offence of escape from lawful custody after being arrested.
2.Accused sentenced to nine months’ imprisonment, from 16 March 2011 – 15 December 2011, with balance to be suspended from 29 June 2011.
3.Accused placed on a good behaviour bond until 15 December 2011.
The essential ground of appeal claims that the verdict is unsafe or unsatisfactory. The appellant alleges that there was no or insufficient evidence that he was lawfully arrested prior to his purported escape, nor that he was in lawful custody prior to his purported escape.
The appellant seeks orders that the conviction be set aside and a verdict of not guilty be entered, or in the alternative that a retrial be ordered.
Facts
On 28 June 2008 at approximately 6:30 pm, the appellant was observed driving his motor vehicle on Northbourne Avenue, Canberra, when he allegedly failed to obey a traffic control signal. Senior Constable Allan Young and Constable Jason Hall, who were patrolling in a police vehicle, stopped the appellant’s vehicle. They approached the appellant and requested to see his driver’s licence. The appellant informed the police officers that he did not have a licence as he was a disqualified driver and that he had just been released from gaol for driving offences. Upon further request that the appellant establish his identity, the appellant produced a proof of age card. Senior Constable Young then moved away from the appellant’s vehicle to conduct an identification check. Senior Constable Young then received information which confirmed that the appellant was a disqualified driver. He returned and approached the appellant and informed the appellant that he was a disqualified driver. Senior Constable Young testified that he told the appellant that “he would be coming with us”. The appellant remonstrated, stating words to the effect of “I can’t go back, I can’t go back to gaol, please don’t arrest me.”
Senior Constable Young then said “You will be coming with us”. The appellant replied “Does that mean I’m under arrest?” to which Senior Constable Young replied “Yes, you are under arrest. You will have to accompany us to the City Station.”
The appellant then walked around his car and ran away. Senior Constable Young and Constable Hall then returned to their vehicle and sought to locate the appellant without success.
In due course the appellant was arrested and on 3 August 2008 he appeared before a magistrate in the ACT Magistrates Court, where he pleaded not guilty to two driving offences and also to a charge under s 160 of the Crimes Act 1900 (ACT) (“the Act”) of escaping from lawful custody after being arrested (“the charge”). The charge stated as follows:
That on the 28th of June 2008 at Canberra in the Australian Capital Territory Alfio Licciardello being a person who was in lawful custody in respect of an offence against a law of the Territory, escaped from that arrest.
On 5 June 2009 the appellant again appeared before a magistrate and consented to the Magistrates Court having jurisdiction to hear and determine the charge simultaneously with the driving offences.
On 11 February 2010 the appellant was granted leave to withdraw the consent and on 6 October 2010 he filed an election to have the charge tried by a judge alone. On 28 October 2010 the appellant was arraigned upon that charge and pleaded not guilty.
On 26 May 2011 the charge was heard before this Court by Nield AJ. The trial judge found the offence proven and made orders to the effect set out at [1] above.
The fundamental issues raised on this appeal are whether on 28 June 2008 the appellant had been lawfully arrested and whether at that time the appellant was in lawful custody. If the appellant had not been lawfully arrested, or was not in lawful custody, the charge must fail.
There is first a procedural issue to be dealt with.
Issue 1: Is the appellant bound by his conduct of his trial?
The appellant was unrepresented at his trial. At his trial he elected to raise the defence of mistaken identification. On this appeal the appellant, who is now represented, abandons such defence and does not challenge that he was the driver. Instead the appellant seeks to raise for the first time the lawfulness of the arrest and the issue of whether he was ever in lawful custody.
The first question to be considered is whether the appellant is bound by his conduct of the trial and therefore is prevented from appealing his conviction on new grounds. In Hill v The Queen [2011] ACTCA 5 (“Hill”) the Court said at [24]:
Finally, the Court recognises that there is a question about the proper way to deal with an appeal point that was not taken at trial. Accepting that it is generally undesirable to allow a matter to be raised on appeal when it was not put in issue at the trial, we nevertheless consider that it would not be appropriate to refuse to consider an appeal ground challenging whether the necessary elements of the offence were in fact the subject of any evidence at trial. The obligation on the prosecution to establish all elements of the offence beyond reasonable doubt means that an oversight by the prosecution in not leading appropriate evidence cannot be dismissed as inconsequential merely because no-one else noticed it during the trial either.
To a similar effect in a similar context, see Jovic v Lamont [2007] NSWCA 47 at [68] and Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia (2002) Aust Torts Reports 81-636 at [51].
There is no evidence that the critical facts considering the lawfulness of the arrest were addressed at the trial. This issue is being raised for the first time on appeal but that fact does not obviate the prosecutor’s obligation to prove the elements of the charge.
The issues now raised by the appellant go to the very foundation of the charge, namely whether there was evidence to support each element of the charge. Accordingly, consistent with the Full Court’s decision in Hill, the Court permits the appellant to raise such a ground.
Issue 2: Could the appellant have been lawfully arrested?
Section 160 of the Act provides:
Escaping
A 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 who escapes from that arrest, custody or detention commits an offence.
Maximum penalty: 100 penalty units, imprisonment for 5 years or both.
For a person to be convicted of escape from lawful arrest, it must be established as a necessary element of the offence that the arrest from which the person escaped was lawful: see for example Michaels v The Queen (1995) 184 CLR 117 at 124 and R v Templeton [1956] VLR 709.
Section 212 of the Act relevantly provides:
Power to arrest without warrant
1. A police officer may, without warrant, arrest a person for an offence if the police officer suspects on reasonable grounds that—
(a) the person has committed or is committing the offence; and
(b)proceedings by summons against the person would not achieve 1 or more of the following purposes:
(i) ensuring the appearance of the person before a court in respect of the offence;
(ii)preventing a repetition or continuation of the offence or the commission of another offence;
(iii)preventing the concealment, loss or destruction of evidence relating to the offence;
(iv)preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v)preventing the fabrication of evidence in respect of the offence;
(vi)preserving the safety or welfare of the person.
As a prerequisite to arrest it is therefore necessary for the police officer to suspect on reasonable grounds that proceedings by summons against the person would not achieve one or more of the purposes enumerated in s 212(1)(b)(i)–(vi) of the Act.
The prosecution submitted that the necessary suspicion could be inferred from the fact that the records relating to the appellant established that the appellant was a disqualified driver and that a further attempt on the part of the appellant to drive would constitute a repetition or continuation of the offence or the commission of another offence as provided by s 212(1)(b)(ii) of the Act.
In R v Hill [2012] ACTSC 17, the question arose whether a police officer undertaking an emergency search held the requisite belief. Refshauge J observed at [90]: “The question, though, is whether the belief was actually held, not whether it could, justifiably, have been held.”
The evidence of Senior Constable Young does not establish that he in fact held the suspicion referred to under s 212(1)(b)(ii). Whilst he may have held that suspicion, no evidence was adduced during the trial to establish that fact. Although in Warren v Coombes (1979) 142 CLR 531 at 551 the High Court of Australia held that ordinarily a court of appeal is in as good a position as a trial judge to draw inferences from undisputed facts, the inference advocated for by the prosecution cannot be drawn from the undisputed facts in this case. The fact that Senior Constable Young could have held the necessary suspicion is no basis for inferring, beyond reasonable doubt, that he did so. In summary, no evidence was adduced to establish that the requirements of s 212 of the Act which empowered Senior Constable Young to arrest the appellant were satisfied.
The appellant has referred to the principle that arrest is, at common law, a measure of last resort: see Donaldson v Broomby (1982) 40 ALR 525 and DPP v Carr (2002) 127 A Crim R 151. We do not consider it necessary to go further than to observe that the failure of the respondent to adduce evidence of an essential element of the offence renders the arrest invalid.
It follows that the arrest of the appellant was unlawful.
Issue 3: Had the appellant been “arrested”?
In Alderson v Booth [1969] 2 QB 216, Lord Parker CJ stated at 220-221:
There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying “I arrest you” without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted where any form of words is used which in the circumstances of the case were calculated to bring to the defendant’s notice and did bring to the defendant’s notice, that he was under compulsion and thereafter he submitted to that compulsion. (Emphasis added)
The decision in Alderson v Booth was followed by the New South Wales Court of Criminal Appeal in R v O’Donoghue (1988) 34 A Crim R 397, where Hunt J (as he then was) stated at 401:
An arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person. Words may be sufficient: Alderson v Booth [1969] 2 QB 216 at 220-221; 53 Cr App R 301 at 303-304; but they are not always necessary - what must be done is what is reasonable in the circumstances: Tims v John Lewis & Co Ltd [1951] 2 KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36; [1971] 1 All ER 173 at 178.
In Wilson v New South Wales (2010) 278 ALR 74, two sheriffs attempted to enforce a property seizure order at the appellant’s home. Mr Wilson ordered the sheriffs to leave and an altercation on the veranda of the house followed in which a sheriff was assaulted. Following this altercation, Mr Wilson re-entered his house. The sheriff told Mr Wilson words to the effect “you’ve assaulted me and you’re under arrest”. Mr Wilson then locked the door and walked further back into his house. The sheriffs left the property. Subsequently, the sheriffs re-entered the property to prevent Mr Wilson from leaving and there was a further altercation. Mr Wilson subsequently sued, inter alia, for trespass to land and trespass to person. In the New South Wales Court of Appeal, Hodgson JA stated at 97:
[57] It was submitted for the state that Mr Davies had lawfully arrested Mr Wilson on the verandah, and was entitled to re-enter the property to effect the detention of Mr Wilson pursuant to that arrest, or (in the alternative) that there was a process of lawful arrest of Mr Wilson commenced on the verandah, and Mr Davies was entitled to re-enter the property to complete that process.
[58] It was submitted for Mr Wilson that Mr Davies had not arrested Mr Wilson on the verandah, because there had not been either an act of arrest (such as touching) or submission by Mr Wilson, referring to Hatzinikolaou v Snape (1989) 97 FLR 86 (Hatzinikolaou); and that the occasion of the second entry was not “immediately after” the alleged assault by Mr Wilson, and so could not be justified by s 352(1)(a) of the Crimes Act.
[59] In my opinion, there was not a completed arrest of Mr Wilson on the verandah. The requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission.
[60] As regards (1), if the arrest is to be lawful, this should normally include informing the person that he or she is arrested and informing the person of the reason for the arrest: Christie v Leachinsky [1947] AC 573 at 587–93 ; [1947] 1 All ER 567 at 572–5 (Christie). However, this is not necessary if the circumstances make these things obvious, or if the person arrested prevents it: Christie at AC 587–593; All ER 572–5, R v Hoar [1965] NSWR 1167; Woodley v Boyd [2001] NSWCA 35 at [38] (Woodley).
[61] As regards (2), a touching on the shoulder can be a sufficient act of arrest, and even this is not necessary if the arrested person submits: Alderson v Booth [1969] 2 QB 216 at 220, Hatzinikolaou, Woodley at [38].
[62] In this case, on the findings of the primary judge, on the verandah Mr Davies clearly conveyed to Mr Wilson his intention to arrest him and the reason for the arrest, telling him “you assaulted me and you’re under arrest”. However, by this time Mr Wilson was inside the house. There was no physical contact that could amount to an act of arrest, and no submission. Rather, Mr Wilson then went further inside the house. In my opinion, in the absence of a physical act of arrest and of submission, there was not an arrest completed at this stage.
In the present appeal, the evidence at trial establishes that the constables informed the appellant that he was under arrest and of the reason for his being under arrest. However no physical restraint was imposed on the appellant. Furthermore, the appellant did not submit to being arrested, as his actions in departing the scene make clear. Accordingly, the second element necessary to complete an arrest has not been established. Upon these facts it cannot be said that the appellant was guilty of escaping arrest, as the arrest had not been effected prior to the appellant fleeing.
It follows that even if the arrest had been lawful because the relevant “suspicion” had been formed, the physical aspect of the arrest remained unfulfilled. Accordingly the “arrest” was flawed on this ground also.
Issue 4: Was the appellant in custody?
The appellant submits that the indictment is defective in that it refers to the appellant being in lawful custody rather than under lawful arrest. It was agreed by both parties that the indictment was “infelicitously worded”. However, the wording of the indictment purports to describe the alleged actions of the appellant.
In Holgate-Mohammed v Duke [1984] AC 437 at 441, Diplock LJ said:
The word “arrest”... is a term of art. First, it should be noted that arrest is a continuing act; it starts with the arrester taking a person into his custody, (sc. by action or words restraining him from moving anywhere beyond the arrester’s control), and it continues until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate’s judicial act.
His Lordship also said at 442:
the mere act of taking a person into custody does not constitute an “arrest” unless that person knows, either at the time when he is first taken into custody or as soon thereafter as is reasonably practicable to inform him, upon what charge or on suspicion of what crime he is being arrested: Christie v Leachinsky [1947] AC 573.
The fact that the appellant was not physically restrained is not determinative of the issue of whether or not he was in custody. This was the view of the New Zealand Court of Appeal in R v Goodwin [1993] 2 NZLR 153 where Cooke P held at 161 that where a person is informed that they are not free to leave, this equates to custody. His Honour said:
Detective Constable Bass gave evidence that he had cautioned the accused and told him that he was not under arrest, as recorded, and the Judge accepted that evidence. At first sight this might possibly provide ground for a submission that the accused would have been allowed to leave and could not reasonably have believed otherwise; but the Crown did not so argue in this Court. It seems to me that the Crown was wise in this approach and I adopt it quite apart from the Crown's attitude. What the accused would have understood from being told that he was not under arrest is far from clear. Even Judges differ on the point, as will be seen, and a layman in the accused's shoes could have thought that the simple reality was that he was not free to go because he was suspected of a crime and was going to be asked more questions about it.
The approach invited by the Crown, and in my opinion realistically invited, requires acceptance that throughout the crucial interview the accused was in fact detained or in custody (expressions which are synonymous in this context) although not formally arrested.
The finding of Diplock LJ also accords with the view of the Federal Court of Australia. In Eatts v Dawson (1990) 21 FCR 166, Morling and Gummow JJ said at 178:
Further, in some contexts, custody may subsist without immediate physical control and police may have a person in custody without first having arrested that person.
And at 179 their Honours said:
Elements in the lexical meanings of “custody” include the notion of dominance and control of the liberty of the person, and the state of being guarded and watched to prevent escape. To confine the meaning of “custody” to “that state which follows arrest or similar official act”, as the first respondents would have it, is, in our opinion, to pay too close a regard to legal forms rather than the substantive character or quality of police activity.
When Senior Constable Young made it clear to the appellant that the appellant was not free to leave and “He would be coming with us”, the appellant was by words restrained from moving anywhere beyond the Senior Constable’s control. Thus the action of the appellant in running away prima facie constitutes escaping from custody. The indictment was therefore not defective in that respect.
It is evident that s 160 of the Act encompasses both escape from lawful arrest and escape from lawful custody. However, the fact that the indictment alleged that the appellant escaped from arrest, rather than from custody, means that the prosecution was unable to prove the charge, since it is an essential element of that charge that the arrest be lawful. The appellant was in custody but he was charged not with escaping from custody but with escaping from arrest, and, as found above, the arrest was unlawful.
Conclusion
It follows that the conviction of the appellant on the charge that he, being a person in lawful custody, escaped from that arrest, must be set aside, and that a verdict of not guilty in respect of that charge must be entered.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 4 April 2012
Counsel for the Appellant: Mr Paul Edmonds
Solicitor for the Appellant: Paul Edmonds Solicitor
Counsel for the Respondent: Mr J White
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 14 February 2012
Date of judgment: 4 April 2012
10
1