Noordhof, J.J. v Bartlett, M.J
[1986] FCA 447
•15 OCTOBER 1986
Re: JOHN JACOB NOORDHOF
And: MICHAEL JAMES BARTLETT
No. ACT G68 of 1985
Assault in execution of duty
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
Gallop J.
Jackson J.
CATCHWORDS
Assault in execution of duty - Police executing warrants of apprehension - Service and Execution of Process Act 1901 - non-production of warrant at hearing - no foundation for admission of secondary evidence - insufficiency of secondary evidence - whether all elements of offence satisfied - insufficient proof of execution of duty - statutory requirements regarding warrants to be applied strictly.
Federal Court of Australia Act 1976 s.24
Australian Federal Police Act 1979 ss.60,64,65,68
Court of Petty Sessions Ordinance 1930
Service and Execution of Process Act 1901 s.26D
Crimes Act 1914 (Cwlth.) s.10
R. v. Galvin (No. 1) (1961) VR 733
Corbett v. The King (1932) 47 CLR 317
R. v. Tillett; Ex parte Newton (1969) 14 FLR 101
Crowley v. Murphy (1981) 52 FLR 123
Baker v. Campbell (1983) 153 CLR 52
Arno v. Forsyth (1986) 65 ALR 125
Parker v. Churchill (1986) 65 ALR 107
Henderson v. O'Connell (1937) VLR 171
HEARING
CANBERRA
#DATE 15:10:1986
ORDER
The appeal be allowed with costs.
The order of the Supreme Court of the Australian Capital Territory be set aside. In lieu thereof substitute the following order:-
(i) The appeal be allowed with costs.
(ii) The conviction entered in the Court of Petty Sessions be set aside.
(Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.)
JUDGE1
The appellant appeals from a judgment of the Supreme Court of the Australian Capital Territory given on 23 August 1985 dismissing an appeal from a conviction entered against him on 29 October 1984 in the Canberra Court of Petty Sessions on a charge of assaulting the respondent in the execution of his duty in contravention of sub-section 64(1) of the Australian Federal Police Act 1979. The appellant was fined $400 in default 16 days imprisonment. In accordance with the provisions of the Court of Petty Sessions Ordinance 1930 then in operation, the appeal to the Supreme Court from the conviction in the Court of Petty Sessions was by way of rehearing on the evidence given in the appeal hearing before the Supreme Court. The judgment of the Supreme Court was that "the appeal be dismissed: penalty and orders of magistrate confirmed", and the appellant was ordered to pay the respondent's costs. The appeal to the Federal Court is brought pursuant to paragraph 24(1)(b) of the Federal Court of Australia Act 1976 and on this appeal, the Federal Court has regard to the evidence given in the proceedings in the Supreme Court; see s. 27.
For present purposes, the relevant parts of s.64 of the Australian Federal Police Act provide:-
"64. (1) A person shall not assault . . . a member in the execution of his duty.
Penalty -
(a) on conviction on indictment - imprisonment for 2 years; or
(b) on summary conviction - $2,000 or imprisonment for 12 months, or both."
In that section, the word "member" includes a member of the Australian Federal Police, see s.4 and s.60. Under s.65, an offence against the Act may be prosecuted either summarily or on indictment. The appellant was prosecuted summarily.
On 5 July 1984, the respondent, as informant, charged the appellant, as defendant, with the offence. The offence was stated as follows:-
"That he in the Australian Capital Territory on the 5th day of July in the year 1984, did assault Michael James BARTLETT then being a member of the Australian Federal Police, in the execution of his duty."
The following summary of the cases for the prosecution and the defence are taken from the reasons for judgment of the Supreme Court:-
"The prosecution case is that after arresting the appellant on warrants issued under the Service and Execution of Process Act 1901 for non-payment of fines, the respondent, with Constable Dunham, a fellow member of the Australian Federal Police, accompanied the appellant to the Canberra Police Station where the appellant was placed in a holding room. Upon the respondent returning alone to the holding room in order to show the original warrants to the appellant, the appellant attacked him. A fight ensued with the constable acting in self defence. The fight ended when the constable punched the appellant twice in the head.
The case for the defence was that the respondent in the company of Constable Dunham came into the holding room and immediately struck the appellant who was seated several times in the face. In the fight that ensued it was the appellant who was acting in self defence. It was submitted that in any event the constable was acting outside the provisions of the Service and Execution of Process Act and accordingly was not acting in the execution of his duty."
The essential ingredients of the offence with which the appellant was charged are the assault, the fact that the respondent was a member of the Australian Federal Police and the fact that at the time he was assaulted, the respondent was acting in the execution of his duty; see R. v. Galvin (No. 1) (1961) VR 733 at 738.
In the present case, there are some unusual features associated with the alleged assault. The facts of the assualt will be considered later. The respondent proved he was a member of the Australian Federal Police by the production of a certificate under s.68 of the Australian Federal Police Act. In order to prove that at the time he was assaulted he was acting in the execution of his duty, the respondent claimed that he was executing warrants of apprehension issued under s.26D of the Service and Execution of Process Act 1901 ("the Act") which authorised him to apprehend the appellant and to bring him before the Canberra Court of Petty Sessions; see s.26E of the Act.
Sections 26D and 26E are within Part IVA of the Act. That Part is headed "ENFORCEMENT OF FINES IMPOSED BY COURTS OF SUMMARY JURISDICTION". That Part was first inserted into the Act in 1963 by Act No. 35 of that year. For the purposes of this appeal, the relevant parts of s.26D of the Act provide:-
"26D. (1) Where -
(a) a Court of a State ... has ... imposed a fine on a person;
(b) the liability of the person to pay the fine has not been fully discharged;
(c) the amount owing in respect of the fine is ... an amount by reason of the non-payment of which a warrant for the commitment to gaol of the person on whom the fine was imposed -
...
(ii) could be issued without further order of a Court; and
(d) the Clerk of the Court by which the fine was imposed or a Justice of the Peace for the State ... in which the fine was imposed has reason to believe that the person on whom the fine was imposed may be in a State or proclaimed Territory other than the State or Territory in which the fine was imposed,
the Clerk or Justice may issue a warrant for the apprehension of the person on whom the fine was imposed by reason of the non-payment of the amount referred to in paragraph (c).
(2) A warrant of apprehension shall be substantially in accordance with Form 1 in the Fourth Schedule to this Act and shall be addressed to all constables in the State or Territory in which it is believed the person concerned may be.
(3) ... ".
Reference should be made to s.26A of the Act for the interpretation provisions applicable to Part IVA.
Sub-section 26E(1) of the Act provides:-
"26E. (1) A warrant of apprehension is sufficient authority to any constable to whom it is addressed to execute the warrant in accordance with this section."
In this prosecution, in order to prove that at the time the respondent was assaulted he was acting in the execution of his duty, it would be expected that the warrants of apprehension which were being executed by the respondent would have been proved and tendered in evidence as part of the case for the prosecution. None of the warrants of apprehension, which the respondent claims he was executing at the time of the assault, were in evidence in the proceedings in the Supreme Court. There was no evidence to show that the warrants could not be produced. There was no foundation established for the admission of secondary evidence to prove the contents of the warrants or any of them. There is no evidence to show that a Clerk of a Court or a Justice of the Peace of a State had signed any warrant of apprehension relating to the appellant. There was no evidence to prove that at the time the respondent claims he was assaulted, he was "in the execution of his duty". In the proceedings before the Supreme Court, the appellant did not admit any of these facts.
Unfortunately, in the proceedings in the Supreme Court, counsel for the appellant made no submissions based on the absence of proof of this essential ingredient of the offence. It is possible that if such submissions had been made, the respondent could have sought an adjournment to enable the evidence to be obtained. At the hearing of the appeal before this Court, these matters were put to counsel appearing for the respondent. He had no answer to the point. He made no submission against the proposition that if this Court held that the respondent had failed to prove that the respondent, at the time of the alleged assault, was in the execution of his duty, the appeal should be allowed and the conviction quashed. He made no submission to the effect that there should be a new trial. In all the circumstances, the appeal should be allowed on this ground, but, having regard to the way the matter was argued before the Supreme Court and before this Court, some further observations should be made.
Even on the material before the Supreme Court, there was no sufficient evidence to establish that at the time of the alleged assault, the respondent was in the execution of his duty, namely, executing a warrant of apprehension issued under s.26D of the Act. Before turning to the relevant statutory provisions and the facts, some general observations should be made.
In general, a warrant, essentially, is an authority or order directed to a person to do some act. In many cases, the doing of that act in the absence of the warrant, would be unlawful. A clear statement of the nature of a warrant is given in Corbett v. The King (1932) 47 CLR 317 by Gavan Duffy C.J., Rich and Dixon JJ. at p.333:
"A warrant is a precept under the hand and seal or hand of a person vested with authority empowering another or others to do an act or perform a function."
The authority to issue a warrant is often contained in legislation, see for example, s.10 of the Crimes Act 1914 (Cwlth.). A warrant issued under that section is commonly called a search warrant. Legal questions relating to the execution of warrants may arise in many different ways. A question may arise as to whether the warrant relied upon was in fact authorised by the legislation. A question may arise as to whether the warrant was issued validly. A question may arise as to the proper construction of the terms of the warrant. A question may arise as to whether the person executing the warrant was acting outside the powers conferred by the warrant. Many other questions may arise. A reference to just a few of the many cases dealing with warrants illustrates the wide range of questions that do arise; see for example Corbett v. The King, above, R. v. Tillett; Ex parte Newton (1969) 14 FLR 101; Crowley v. Murphy (1981) 52 FLR 123; Baker v. Campbell (1983) 153 CLR 52; Arno v. Forsyth (1986) 65 ALR 125 and Parker v. Churchill (1986) 65 ALR 107 All these cases indicate that whenever a Court is hearing a matter involving a warrant, it is imperative that careful consideration be given to the provisions, statutory or otherwise, which authorise the issuing of the warrant, the terms of the warrant and the facts surrounding the execution of the warrant. It is equally imperative that counsel appearing in cases of this kind give careful consideration to these matters. From their very nature, warrants authorise acts to be done which otherwise are not authorised. Warrants must be scrutinised very carefully.
The statutory authority to issue a warrant of apprehension has been referred to earlier in these reasons. The authority is contained in s.26D of the Act. A warrant shall be substantially in accordance with Form 1 in the Fourth Schedule to the Act. That form is set out:-
"COMMONWEALTH OF AUSTRALIA
Service and Execution of Process Act 1901-1963
WARRANT OF APPREHENSION
To all members of the Police Force of the State (or Territory) of
and all Commonwealth Police Officers in that State (or Territory).
Whereas then of (hereinafter referred to as 'the said convicted person') was on the day of , 19 , convicted by (name of Court), at in the State (or Territory) of , of the offence of (short description of nature of offence) and it was adjudged by the Court that he pay for his offence a fine of together with (set out particulars of other amounts (including costs) in respect of non-payment of which the warrant is issued):
And whereas the amount of
still remains unpaid in respect of the said fine and other amounts so adjudged to be paid:
And whereas, by reason of non-payment of the said unpaid amount, the said convicted person is liable to be committed to gaol for a period of :
And whereas it appears to me that the said convicted person may be in the State (or Territory) of and may be found at :
These are therefore to authorize and command you to find the said convicted person in the last-mentioned State (or Territory) and having so found
him
(a) to produce this warrant to him;
(b) to give him an opportunity of forthwith paying to you the whole of the said unpaid amount; and
(c) if he does not forthwith pay the whole of the said amount to you, to apprehend him and bring him before a nearby Court of Summary Jurisdiction, to be dealt with according to law:
These are also to command you, if the said convicted person pays the whole of the said unpaid amount to you, to send the amount so paid to the Clerk of the abovementioned Court.
Given under my hand at
this day of , 19
Clerk of the (name of court) or Justice of the Peace."
It should be noted that the warrant authorizes and commands the persons to whom it is addressed to find the convicted person and having so found him:-
"(a)to produce this warrant to him;
(b) to give him an opportunity of forthwith paying to you the whole of the said unpaid amount; and
(c) if he does not forthwith pay the whole of the said amount to you, to apprehend him and bring him before a nearby Court of Summary Jurisdiction, to be dealt with according to law".
Section 26F of the Act makes provision for what is to happen when a convicted person is brought before a Court of Summary Jurisdiction pursuant to a warrant of apprehension and the provisions of the Act. It is not necessary to refer in detail to those provisions but it should be noted that by sub-section 26F(6) in proceedings under that section a warrant of apprehension is evidence of the facts stated in the warrant and a document purporting to be a warrant of apprehension is, unless the contrary is proved, deemed to be such a warrant and to have been duly issued. Section 26G makes provisions for orders of committal made under s. 26F.
Section 26E contains detailed provisions relating to the execution of warrants of apprehension. Sub-section 26E(1) has been set out earlier in these reasons but for ease of reference, s.26E is set out in full:-
"26E. (1) A warrant of apprehension is sufficient authority to any constable to whom it is addressed to execute the warrant in accordance with this section.
(2) Where a constable who is authorized to execute a warrant of apprehension in a State or Territory finds in that State or Territory the person for whose apprehension the warrant is issued, he shall give the person an opportunity of forthwith paying to the constable the whole of the unpaid amount in respect of the fine as specified in the warrant.
(3) If the person so pays the whole amount forthwith, the constable shall not apprehend the person but shall cause the warrant to be returned to the Clerk of the Court by which the fine was imposed, together with the amount paid to him.
(4) If the person does not so pay the whole amount forthwith, the constable may apprehend the person, in which event the constable shall bring the person, as soon as practicable, before a nearby Court in the State or Territory in which the apprehension takes place and deliver the warrant to the Clerk of that Court.
(5) A constable apprehending a person under this section shall produce the warrant of apprehension to that person at the time of, or as soon as practicable after, the apprehension and, if the warrant has not been produced at the expiration of forty-eight hours after the apprehension or of such longer time as may, before the expiration of that time, be fixed by a Justice of the Peace and the person has not been released from custody by virtue of another provision of this Part, he shall forthwith be released from custody, but any such release does not prevent the further apprehension of the person under the warrant by any constable to whom it is addressed who is in possession of the warrant and produces it at the time of the apprehension.
(6) The laws of a State or Territory relating to the custody of persons charged with summary offences, including laws relating to remanding in custody, granting of bail and entering into and forfeiture of recognizances, shall apply and be applied as far as they are applicable to and in relation to a person apprehended in that State or Territory in pursuance of this section as if he had been apprehended for a summary offence against the laws of that State or Territory.
(7) Where, during the detention in custody of a person in pursuance of the last preceding sub-section, the liability of the person to pay the fine to which the warrant of apprehension relates is fully discharged, the person shall forthwith be released."
It appears, and for present purposes it will be assumed, that the appellant had been convicted on four separate occasions for offences arising out of his occupation of driving a road transport vehicle. One of the convictions was in the Goulburn Court of Petty Sessions, N.S.W., two were in the Magistrates Court at Kilmore, Victoria, and one was in the Magistrates Court at Seymour, Victoria. In the Goulburn Court of Petty Sessions the appellant had been ordered to pay a fine of $200 with $16 costs. The total amount of the fines and costs ordered to be paid by the appellant was $1368.80. It appears, and for present purposes it will be assumed, that four warrants of apprehension under s.26D of the Act were issued with respect to each of these four convictions and that the appellant was named as the convicted person in each of them. The warrant based on the conviction in the Goulburn Court of Petty Sessions was directed:-
"To all members of the Police Force of the Territory of Australian Capital and all Commonwealth Police Officers in that said Territory."
It is not clear to whom the other three warrants were directed. There is evidence that four warrants of apprehension relating to the appellant were forwarded to the City Police Station at Canberra, and that the appellant lived at 13 Parer Street, Scullin, both within the Australian Capital Territory, a proclaimed Territory under s.26D of the Act.
Sometime in June 1984, the respondent told the appellant that he had the four warrants of apprehension. On Tuesday, 5 July 1984, the respondent, in company with First Constable Dunham, went to 13 Parer Street, Scullin for the purpose of executing the four warrants of apprehension. Despite the clear wording of the authority and command contained in the form of the warrant appearing in the Schedule to the Act, the respondent did not take any of the warrants with him. He was going to the home of the appellant to execute warrants of apprehension which required him to produce the warrants to the appellant, but the respondent did not take the warrants with him. He had with him what purported to be photocopies of each of the four warrants. The photocopy of the warrant with respect to the conviction in the Goulburn Court of Petty Sessions did not include the whole of the signature of the person signing it, the top part only of the signature appearing, and did not depict the office of the person purporting to sign the warrant. In other words, the photocopy did not show whether the signature was that of the Clerk of the Goulburn Court of Petty Sessions, a Justice of the Peace or some other person. The photocopies of the other three warrants were even worse. Each contained a reference to a conviction in the specified Court and nothing else. They did not purport to authorize the respondent to do anything.
For present purposes, it is sufficient to say that the respondent showed the four photocopies to the appellant and demanded payment of $1368.80. The respondent would not let the appellant enter his house. The appellant's wife went off to raise the money and the respondent apprehended the appellant, or in his words, arrested him. The appellant was conveyed to the City Police Station and placed in a holding room. The respondent went to get the four original warrants, returned with them to the holding room, where the alleged assault took place.
In giving evidence in the proceedings in the Supreme Court, the respondent said that the four original warrants had been returned to the courts from which they had come. He was then shown the four photocopies of the warrants which he had taken with him when he apprehended the appellant. Counsel then tendered the four photocopies. Counsel for the appellant objected to the tender on the basis that under sub-section 26E(5) of the Act, the original warrant had to be produced to the convicted person before the apprehension occurred, except in the exceptional case when a member of the Police Force happened to see a person against whom a warrant had been issued but did not have the warrant with him. In those circumstances, the member of the Police Force could apprehend the convicted person, but was required to produce the original warrant to him within the specified time. Counsel for the respondent contended that the purpose of the tender was to establish what the respondent took with him and showed to the appellant. The learned trial Judge allowed the tender. He said:-
"In due course I will rule on that question of law but at this stage, it seems to me, that these documents are relevant to the Crown case. Whether they, in the end, are found to prove the Crown case to the requisite degree is another matter but in my view they are clearly relevant and I will allow it."
In its reasons for judgment, the Supreme Court did not refer specifically to this matter. The Court held that even where a member of the Police Force went to the home of a convicted person for the purpose of executing a warrant of apprehension and despite the clear words of the command in the warrant, the member of the Police Force need not produce the original warrant to the convicted person before giving him an opportunity of forthwith paying the whole of the amount unpaid. The Court held that the provisions of sub-section 26E(5) of the Act permitted the apprehension of the convicted person without the prior production of the original warrant and that the obligation to produce the original warrant could be performed after the apprehension and within the time specified in that sub-section. In the present case, the Court held that the alleged assault which occurred when the respondent entered the holding room with the original warrants prevented the formal production of those warrants to the appellant and in the circumstances, there had been a compliance with the requirements of the sub-section. The Court did not consider the question of whether, for the purposes of proving the offence with which the appellant was being tried, the absence of proving the terms of the warrants constituted a defect in the proof of an essential ingredient of the charge against the appellant.
With respect, I disagree with the reasoning of the Supreme Court. Where a member of the Police Force attends the home of a convicted person for the purpose of executing a warrant issued under s. 26D of the Act, he must execute the warrant in compliance with the commands contained in it. One of those commands is "to produce this warrant" to the convicted person. This is the first step in the execution of the warrant. I agree with the reasoning of Mann C.J. in Henderson v. O'Connell (1937) VLR 171. In that case, O'Connell had been convicted of the offence of resisting Henderson, a member of the Victorian Police Force, in the execution of his duty. There a warrant had been issued under s. 124 of the Police Offences Act 1928 (Vic.) directed to members of the Police Force to enter premises and "arrest, search and bring before any justice to be dealt with according to law all persons found therein". In purported execution of the warrant, police entered the premises and among others found O'Connell therein. They did not arrest him, but demanded that he should be submitted to be searched. He refused to be searched whereupon the police took steps to compel the search for the purpose of seeing whether he had upon him any evidence upon which the police could thereafter lay a specific charge upon him. The question for decision by the Supreme Court of Victoria was whether the police had power to search O'Connell for their own purposes without first arresting him pursuant to the commands of the warrant. At pp. 176-7, the Chief Justice said:-
"At common law it is clear that there is no right to search a suspected person until he has been arrested and taken into the custody of the law. He may then be searched for evidence (amongst other things) of the offence with which he has been specifically charged, and the argument here is that exactly the same rule applies under this section, and this is evident first of all from the collocation of the words of the section and the order in which they appear. In my opinion that contention is correct. It is quite true that all the powers of the police of arresting and searching and bringing before a justice are powers specifically conferred upon them for the purpose of obtaining evidence in respect of charges not yet laid, and it is said that in these circumstances the rule against searching persons not under arrest has no application. But there is great necessity in my opinion for construing strictly the powers conferred upon the police in this respect. A power at large to search persons not in custody is one which calls for the clearest authority. It is one which almost inevitably tends to provoke breaches of the peace and is one which on the construction of this section I think the Legislature has not authorised.
The police here clearly did not realise that under this warrant issued under section 124 they had full power to arrest all persons found in the building in question. Had they exercised those powers they would have had warrant also to search and then bring before a justice to be dealt with in accordance with section 145, both the persons arrested and the documents or articles or other things found upon the prisoners as a result of the search. . . . No attempt was made at all, therefore, to follow out the terms of the warrant and of the section by bringing those men before a justice as persons found on the premises. This makes it clear, as do other passages in the evidence, that the police were not acting under the authority of the warrant, but on the belief that they were entitled under that warrant to search any person found there for evidence of any particular offence which they might thereafter lay against them, and not for the purpose, indicated by the warrant and by the section, of bringing all persons promptly before a justice to determine what was to be done. Section 145 shows that when that has been done the justice may order the discharge of the persons brought before him or may order specific charges to be laid against them or may commit them to gaol for a limited period only, pending the laying of specific informations against them.
The machinery provided in the two sections must, in my opinion, be very strictly followed. The result is that technically the police at the material time were not in the execution of their duty. They were of course acting in complete good faith and believed that they were doing their duty, but, for the reasons I have given, I think they were mistaken and the result is, I think, that the charge of resisting the police in the execution of their duty should have been dismissed."
Similar reasoning should apply with respect to the execution of a warrant under s. 26D of the Act. The terms of the warrant, which is in a form contained in the Schedule of the Act, are clear and unambiguous. Sub-section 26E(5) of the Act allows a variation from that sequence. In fact, under that sub-section, the primary sequence is that the warrant be produced at the time of the apprehension. The variation is to apply in exceptional circumstances such as those illustrated by counsel in his objection to the tender of the photocopies of the warrants. Where a member of the Police Force proposes to execute a warrant of apprehension and for that purpose goes to the home of the convicted person, he should take the warrant with him for the purpose of complying with the commands contained in it. That warrant is the authority under which the member of the Police Force is acting. He must produce it to the convicted person as the first step in executing the warrant.
In Corbett v. The King, above, Gavan Duffy C.J. and Rich and Dixon JJ. said at pp.327-8:-
"The cases decided upon enactments making penal the obstruction or resistance to an officer in the course of the execution of his duty show that, when the alleged duty arises from a warrant, the charge cannot be sustained unless the warrant did operate in law as an authority to the officer, and, unless when he was resisted, he was in the course of executing that authority according to law . . . It is not enough that the officer was acting bona fide in obedience to a warrant, which, although bad, appeared to be good. It is true that generally, in such a case, he would not be liable as for an actionable wrong. But he is not protected from liability because it is his duty to execute a bad warrant. The protection is conferred upon him because the public interest requires that officers who really act in obedience to the warrant of a magistrate should be protected' . . .
In considering, however, whether an officer acting under a warrant is in the course of the execution of his duty, it must be remembered that it is not every defect or irregularity in the warrant and not every non-compliance with statutory provisions that destroys the efficacy of the process. Unless the warrant is a nullity, it will operate to confer upon the officer an authority resistance to which would constitute the offence."
In the present case, I consider that the non-production of the original search warrants to the appellant as the first step in the execution of those warrants by the respondent is such a non-compliance with the terms of the warrants and of the provisions of s. 26E of the Act as to destroy the efficacy of the process of execution. It follows that in these circumstances, the apprehension or arrest was not lawful and that at the time of the alleged assault, the respondent was not in the execution of his duty. This question is separate and distinct from the failure of the respondent to prove the warrants.
In the circumstances, it is not necessary to express opinions on other contentions made by counsel for the appellant that in executing the warrants of apprehension, the respondent had departed from the requirements of procedures prescribed for producing the original warrants to the appellant and charging him as a step in bringing him before the Court of Petty Sessions at Canberra. I am satisfied that there is no force in those contentions and in any event the departures from those requirements, if they existed, were not of a kind sufficient to destroy the efficacy of process of execution of the warrants so as to render the detention in the holding room unlawful.
Finally, some brief mention must be made on the issue of the assault. It is not disputed that at the time of his apprehension and during the time he was being conveyed to the Police Station, the appellant used threatening words. Immediately before the apprehension he said to the respondent "It would be worth $50 to punch you in the head. That is all you get for hitting a copper in this town". He repeated those words after his apprehension. While in the police car he told the respondent that he, the respondent, was gutless and threatened to give him a hiding if he ever got him on his own. He also said "Are you coming into the cell at the station for five minutes Bartlett so I can sort you out".
The appellant was placed in the holding room in which the only furniture was a bench seat around the wall. The respondent went to get the original warrants. Despite the earlier threats, the respondent then entered the holding room without being accompanied by another constable.
A short time thereafter, the respondent brought the appellant from the holding room. The appellant was bleeding from a number of lacerations and abrasions to the face and head. He required medical attention. The medical evidence described the injuries suffered by the appellant:-
"bruising over the left eye brow with a 1.5 centimetre laceration which required three sutures, a swelling just about above the left temple, a graze on the bridge of the nose, a swollen and bruised left ear with tenderness and bruising behind the ear, a swollen upper lip with a deep one centimetre laceration which required four sutures, pain and tenderness over the left eighth rib consistent with a rib fracture. There were four definite areas where there had been impact sufficient to cause tissue damage and swelling and bruising."
The respondent suffered no discernible injuries as a result of the alleged assault by the appellant. The respondent did not need any medical treatment. It appeared that his shirt was disarranged with some dirt marks on the left side and left arm. He said he discovered a bruise on his left leg but he did not show the bruise to anyone.
When the appellant was brought before the officer in charge of the Police Station to be charged with the assault, he complained immediately that it was a "trumped up charge". At all times the appellant denied the assault.
The Supreme Court found that:-
". . . it was the appellant who was the aggressor and who in fact used the opportunity to carry out the threats that he had been making to the respondent earlier in the evening when the constable came into the cell alone in order to produce the warrants of apprehension to him. I am quite unconvinced that the appellant was acting in self defence. I therefore find that there was an assault on the part of the appellant perpetrated upon the police constable."
In coming to this conclusion, the Supreme Court was not swayed one way or the other by the demeanour of the witnesses. The Court accepted the evidence of Constable Dunham that he was not present at the time of the assault. In this regard, the Court disbelieved the appellant and this tended to persuade the Court that the whole of the evidence of the respondent should be accepted.
It is difficult for an Appeal Court to set aside findings of fact made by a trial Judge. Because of the unusual features arising from the facts of the assualt, this may be a case where that finding should be set aside. However, having regard to the fact that, on the questions of law, the appeal must be set aside, it is not necessary to decide this issue.
In the result, the appeal should be allowed, the conviction and the order for costs should be set aside and in lieu thereof, it should be ordered that the appeal to the Supreme Court be allowed and the conviction entered in the Court of Petty Sessions set aside. The respondent must pay the appellant's costs of the appeal to the Supreme Court and the appeal to this Court.
JUDGE2
I have had the advantage of reading the respective judgments of Northorp and Jackson JJ. in draft form. I agree that the appeal should be allowed as the prosecution failed to establish beyond reasonable doubt on the hearing of the appeal before the Supreme Court of the Australian Capital Territory that the warrants of apprehension under s. 26D (1) of the Service and Execution of Process Act 1901 had been issued and hence that the present respondent was acting in the execution of his duty when he was allegedly assaulted by the appellant. I desire to express some views of my own about the appeal being allowed on that ground and the consequential orders to be made.
It is important for this court to keep in mind the nature and the conduct of the proceedings which have given rise to an appeal to this court. Keeping that matter in mind, it is apparent from the transcript of proceedings in the Supreme Court and the terms of the judgment appealed from that it was never argued before the Supreme Court that the evidence was insufficient to establish that warrants of apprehension had been issued under s. 26D (1) of the Service and Execution of Process Act and hence that the prosecution had failed to establish beyond reasonable doubt that the respondent was acting in the execution of his duty at the relevant time.
In his reasons for judgment the Chief Justice dealt with the submissions that were made on behalf of the appellant in the following terms:
"The only remaining question is whether the constable was acting in the execution of his duty at the time of the assault. If, of course, he went into the holding room without the intention of producing the warrants to the appellant but in order to beat him, then he was not acting in the execution of duty, but I have already found against the appellant on that aspect. However, the further submission is put on behalf of the appellant that the initial arrest was bad in law because the respondent was not shown the original warrants at the time of the arrest but was shown photocopies. Alternatively, the submission is put, as I understand it, that the appellant, upon arrival at the police station, should have been taken straight to the place where the original warrants were kept and shown the original warrants forthwith. It is submitted that in either case there has been a non-compliance with the provisions of s. 26E of the Service and Execution of Process Act 1901 . . ."
His Honour dealt with those submissions and held that the procedure followed by the constable in placing the appellant in the holding room for the few minutes required to go to that part of the police station where the original warrants were held and returning with those warrants to the holding room in order to show them to the appellant was justified under s. 26E (5) of the Service and Execution of Process Act. His Honour was not asked at the end of the prosecution case to hold that there was no prima facie case.
When the failure of counsel who appeared for the appellant before the Supreme Court to submit that the evidence was deficient in that respect was brought to the attention of senior counsel on the hearing of this appeal, senior counsel for the appellant said:
"I do not think it was put in address at the end of the case that they still had not produced the originals, though that complaint had been made earlier in the case."
That concession made by senior counsel was appropriate as it is quite clear that no submission based upon the absence of proof of the original warrants, an essential fact to be proved as evidence of the ingredient of the offence that the police officer was in the execution of his duty when he was assaulted, was made in the proceedings in the Supreme Court. I agree with the observation of Northrop J. that, if such a submission had been made, the respondent could have sought an adjournment to enable the evidence to be adduced.
However, the point was argued on the hearing of the appeal to this court. The notice of appeal contains ground 3 (d) that the appellant was never shown the original warrants and the respondent has never established that original warrants were available. Such a ground is sufficient to permit the argument which was advanced to this court and which has proved successful. Nevertheless, if such an argument had been advanced on the hearing of the appeal to the Supreme Court, likewise it may have been accepted and been successful in that court. It seems to me therefore that the exercise of the discretion of this court in relation to costs needs to be addressed.
In the exercise of its appellate jurisdiction this court has very wide powers (s.26 of the Federal Court of Australia Act 1976). The court also has jurisdiction to award costs in all proceedings before the court and an award of costs is in the discretion of the court (s.43). In the Australian Capital Territory the power of the Court of Petty Sessions (now renamed the Magistrates Court by Ordinance No. 67 of 1985) is contained in the Magistrates Court Ordinance in the following terms:
"244.(1) The power of the Court to award costs and the award of costs by the Court shall be subject to the following provisions:
(a) Where the Court makes a conviction or order in favour of the informant, it may in its discretion award and order that the defendant shall pay to the informant such costs as it thinks just and reasonable;
(b) Where the Court dismisses the information, or makes an order in favour of the defendant, it may in its discretion award and order that the informant shall pay to the defendant such costs as it thinks just and reasonable;
(c) The sums so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal;
(d) Any sum awarded or ordered to be paid by an informant or to a defendant for costs, may be raised and levied by distress under the provisions of this Ordinance;
(e) Where any case is adjourned the Court may in its discretion order that the costs of and occasioned by the adjournment be paid by any party to any other party;
(f) The costs of persons present to give evidence or produce documents, whether they have been examined or not, or have or have not produced documents shall, unless otherwise ordered by the Court, be allowed to them though they have not been summoned; but their allowance for attendance shall in no case exceed the highest rate of allowance prescribed;
(g) The amount of costs to be paid by one party to another whether for the attendance of those persons or otherwise shall in all cases be fixed by the Court and the costs in proceedings to obtain judgment on complaints shall follow the event; and
(h) Whenever a complaint over which the Court has no jurisdiction is brought before the Court, the Court may award costs to the like extent and recoverable in the like manner as if the Court had jurisdiction and the complaint had been dismissed.
(2) The amount of the Court fees to be included in any costs awarded in pursuance of this sesction shall not exceed the amounts respectively prescribed by rules or regulations under this Ordinance."
The principles to be applied on the hearing of a successful appeal from the Magistrates Court to the Supreme Court of the Australian Capital Territory were laid down by a Full Court of the Supreme Court of the Australian Capital Territory in McEwen v. Siely (1972) 21 FLR 131 at 136 as follows:
"From what we have said in the discussion of the authorities, it will be apparent that we think that generally an acquitted defendant should have his costs unless he has by his conduct brought the proceedings or their continuation upon himself or unless some other consideration is present which makes it unjust to award him costs."
Those dicta were approved by a Full Court of the Federal Court in Cilli v. Abbott (1981) 53 FLR 108
In the circumstances of this case the alternative exceptions referred to by the Full Court of the Supreme Court of the Australian Capital Territory in McEwen v. Siely (supra) need to be considered. In my view the circumstances of this case are not such as to lead to a conclusion that the appellant by his conduct brought the proceedings or their continuation upon himself. There are strong grounds, nevertheless, why it would be unjust to make an order for costs in his favour against the respondent. It is apparent that the proceedings in the Magistrates Court and the conduct of the appeal in the Supreme Court revolved principally around the issue of who was the aggressor when the altercation took place between the appellant and the respondent in the cells at the City Police Station. The Chief Justice resolved that issue in favour of the respondent, holding that it was the appellant who was the aggressor. The conduct of the proceeding appealed from and the resolution of the substantive issue against the appellant are in my view sufficient considerations to make it unjust to award him his costs either in the Magistrates Court, the Supreme Court or this court. I would make no order for costs.
Accordingly, the orders I propose are that the appeal be allowed, the conviction and penalty confirmed by the Supreme Court of the Australian Capital Territory be quashed, the information be dismissed and the order for costs of the Supreme Court of the Australian Capital Territory be set aside.
JUDGE3
The appellant appeals from a decision of the Supreme Court of the Australian Capital Territory dismissing his appeal against conviction by the Canberra Court of Petty Sessions on a charge of assaulting the respondent, a member of the Australian Federal Police, in the execution of his duty, in contravention of s.64(1) of the Australian Federal Police Act 1979. The proceedings in the Supreme Court were pursuant to s.218 of the Court of Petty Sessions Ordinance 1930 and proceeded as a hearing of the charge de novo, it being common ground that the amendments to s.218 effected by the Court of Petty Sessions (Amendment) Ordinance (No. 4) 1984 had no relevant application.
The assault (if such it was) giving rise to the charge occurred, on all the evidence before the Supreme Court, on 5th July 1984 at the Canberra Police Station in a place described as the "holding room".
The respondent's case was that the appellant had been arrested outside his home at about 5:25 p.m. on that day, the reason for the arrest being the appellant's failure to pay a total of $1,368.80 due on four warrants of apprehension issued under s.26D(1) of the Service and Execution of Process Act 1901 in New South Wales and Victoria for non-payment of fines. The appellant was taken to the Canberra Police Station and was placed in the holding-room while Constable Dunham, who had accompanied the respondent in making the arrest, commenced preparing an "arrest sheet" in relation to the warrants and the respondent returned to the holding room with the four original warrants with the intention of producing them to the appellant. The appellant, on the respondent's case, then attacked the respondent.
The appellant's case, on the other hand, was that the respondent and Constable Dunham entered the holding room, the respondent holding some papers in his hand, and that the respondent then proceeded to punch and hit him.
S.64(1) of the Australian Federal Police Act provides relevantly that:-
"(1) A person shall not assault . . . a member in the execution of his duty."
and the term "member" is defined in s.4(1) to mean a member of the Australian Federal Police.
It is clear, in my view, that one of the elements of s.64(1) which it is necessary to establish in order to obtain a conviction is that at the time of the assault the member of the Australian Federal Police was acting "in the execution of his duty". As Gavan Duffy, Sholl and Adam JJ. said in Reg. v. Galvin (No. 1) (1961) VR 733 at 738, the prosecution:-
". . . must prove that the person was a police officer in fact, and was in fact acting "in the due execution of his duty"; if it fails so to prove, there is of course no offence under the section".
In Corbett v. The King (1932) 47 CLR 317 at 327-328 the High Court dealt specifically with the case where the "duty" in the execution of which the officer is alleged to have been engaged arose from a warrant. Gavan Duffy C.J., Rich and Dixon JJ. said at 327-328:-
"The cases decided upon enactments making penal the obstruction or resistance to an officer in the course of the execution of his duty show that, when the alleged duty arises from a warrant, the charge cannot be sustained unless the warrant did operate in law as an authority to an officer, and, unless when he was resisted, he was in the course of executing that authority according to law. . . It is not enough that the officer was acting bona fide in obedience to a warrant, which, although bad, appeared to be good. . . .
In considering, however, whether an officer acting under a warrant is in the course of the execution of his duty, it must be remembered that it is not every defect or irregularity in the warrant and not every non-compliance with statutory provisions that destroys the efficacy of the process. Unless the warrant is a nullity, it will operate to confer upon the officer an authority resistance to which would constitute the offence."
See also per Starke J. at 339.
In the present case it was not suggested that the respondent at the time of the assault alleged was engaged in the execution of any duty other than an attempt to execute the four warrants of execution to which I have referred.
No attempt was made, however, to place the four warrants, or any of them, in evidence before the Supreme Court. In fact the only documents which were tendered to establish the existence of the warrants were found in a bundle of four documents, which became Exhibit "A". The documents, it should be noted in passing, were not tendered to prove the existence of the warrants but were tendered to show "that they are the documents that he actually tok out with him" (i.e. to the appellant's home) and "that he in fact presented these documents or showed them to the appellant". The primary Judge then admitted the documents as being relevant to the respondent's case, observing as he did so that "whether they, in the end, are found to prove the Crown case to the requisite degree is another matter. . . ".
The four documents to which I have just referred were of two kinds. The first kind consisted of three documents which were similar in form and related to three separate offences. The form had no particular statutory basis but apparently was a form of "return to warrant" containing inter alia particulars of the offence, the amounts due for fines and costs, and the provision made for imprisonment in default of payment. Those documents were described in the respondent's evidence in the Supreme Court as "photocopies" of warrants of apprehension, but they contain no authority to any person to do anything and are plainly not themselves copies of warrants authorized by s.26D(1). The issue of the three warrants to which those documents were said to relate was thus not proved.
The second kind consisted of one document. It was stamped "copy" and it was in the form of warrant of apprehension contemplated by Form 1 in the Fourth Schedule to the Service and Execution of Process Act. It related to an offence of "Overloading in vehicle YJS.698 on State Highway Marulan on 20.12.82" of which the appellant was said to have been convicted by the Court of Petty Sessions at Goulburn on 9th September 1983. In respect of that offence it stated that a fine of $200.00 had been imposed and that the appellant had been ordered to pay costs of $16.00, and that all that amount remained unpaid. The document itself was a photocopy and - perhaps because the photocopying process had "cut off" the title of the person signing the original - did not show whether that person was a person authorized by s.26D (1) to issue such a warrant.
I find it impossible to regard the admission of that document in that form as sufficient to establish that a warrant of apprehension under s.26D(1) had been issued in respect of that offence and it may thus be seen that if nothing more appeared the issue and terms of the four original warrants relied on had not been proved.
It was suggested on behalf of the respondent, however, that the appellant had admitted the issue and contents of the warrants in some of his evidence and in statements he had made to police officers out of court.
The first passage relied on appears in the appellant's evidence in chief, and is as follows:-
"Now, do you recall 5 July last year?---Yes, sir.
Now, before that date and when did you call up the department of the police force which is known as the warrants section?--- I think it was on the - early in June. I rang up the warrant sergeant---
Yes? --- and I explained to him that I had not had the money to pay the $1368 and would it be all right if I paid towards the end of the month. He explained he could not give me that undertaking, that if I, you know like, did not do the wrong thing he would, like he would not put the pressure on and come after me.
Yes. Did you have a conversation with anybody else that day? --- Yes. Constable Bartlett apparently just walked in the door as I was talking - I think it was to Sergeant Rundle. And Sergeant Rundle said that Constable Bartlett had just walked in and he would put me on to him and I could explain the matter to him. I told Constable Bartlett what I had told Sergeant Rundle and he said, "No go. I will be after you as of tomorrow."
The second is also in the appellant's evidence in chief where he said, referring to the time of his arrest:-
"Were any warrants shown to you at that time? --- No, no warrants at all were shown to me.
Not photostat copies of warrants or anything like that? --- No, nothing at all was shown to me at all. I knew what the warrants were for but nothing at all was shown to me.
At the police station did you see any warrants? --- No, I did not.
Were you told at any stage that - by Mr Bartlett when he came to the cell that he had warrants to show you? --- No, he did not tell me that at all."
The third is from the evidence of Senior Sergeant Huckel, the sergeant in charge of the watch house at the relevant time, given before the Court of Petty Sessions. Senior Sergeant Huckel was ill at the time of the proceedings in the Supreme Court and a transcript of his evidence was admitted by consent. It related relevantly to the events which occurred after the assault, and immediately prior to the appellant being charged with the offence presently in question. It was as follows:-
"I then checked with Mr Noordhof that he understood the four apprehension warrants. . . ".
None of this evidence in my view amounts to proof of the warrants. At best it showed that the appellant knew that some documents were in existence which required him to pay fines totalling $1,368.80.
In these circumstances I would allow the appeal on the ground that the warrants were not proved.
There is, however, a further ground on which I would allow the appeal, that ground relating to s.26E(5) of the Service and Execution of Process Act which provides that:-
"(5) A constable apprehending a person under this section shall produce the warrant of apprehension to that person at the time of, or as soon as practicable after, the apprehension and, if the warrant has not been produced at the expiration of forty-eight hours after the apprehension or of such longer time as may, before the expiration of that time, be fixed by a Justice of the Peace and the person has not been released from custody by virtue of another provision of this Part, he shall forthwith be released from custody, but any such release does not prevent the further apprehension of the person under the warrant by any constable to whom it is addressed who is in possession of the warrant and produces it at the time of the apprehension."
The Supreme Court was of the view that s.26E(5) did not ". . . impose a primary duty to produce the original warrant at the time of apprehension which if not discharged casts on the officer a secondary duty to produce the warrant at a subsequent time" and that there was "a single duty which may be discharged either by producing the original warrant at the time of apprehension or by producing it as soon as practicable thereafter."
I do not agree with that view and in particular I do not think that the constable executing a warrant of apprehension is given a choice either to produce the original warrant at the time of apprehension or to produce it after (albeit as soon as practicable after) that event. Rather it seems to me that s.26E(5) requires the constable to produce the warrant at the time of the apprehension if it is practicable to do so. If it is not practicable to do so the constable must produce the warrant as soon as practicable after the apprehension. One can readily imagine circumstances in which it is not practicable for the constable to produce the warrant at the time of apprehension: for example the person apprehended may have sought to flee before the constable could produce the warrant. I agree, however, with Northrop J. that where, as here, the constable goes to the home of the convicted person with a view to executing the warrant there, s.26E(5) requires that it be taken with the constable and produced on apprehension unless for some reason it is impracticable to do so.
There was nothing to show that it was impracticable to do so in the present case. Indeed such evidence as there was relating to the warrants showed that they were at the City Police Station at Canberra.
It is true, of course, as the passage quoted earlier from the observations of Gavan Duffy C.J., Rich and Dixon JJ. in Corbett v. The King shows, that not every non-compliance with the terms of s.26E will destroy the efficacy of the execution of the warrant. The production of the warrant in compliance with s.26E(5) appears to me, however, to be a critical part of the process leading to deprivation of liberty and I am unable to regard the respondent as acting in the execution of his duty at the relevant time.
I would allow the appeal on this ground also.
In my view, the appeal should be allowed, the conviction and penalty set aside and the respondent should pay the costs of the proceedings here and in the courts below.
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