Police v Majeed

[2024] ACTMC 19

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Majeed

Citation: 

[2024] ACTMC 19

Hearing Dates: 

25 June 2024

Decision Date: 

3 September 2024

Before:

Magistrate Temby

Decision: 

The Defendant has a case to answer

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Escape from arrest – no case submission – requirement in s 160 of the Crimes Act for a police officer to have arrested a person in respect of an offence – whether s 56A of the Bail Act is an offence provision – whether an arrest for a contravention of a bail condition is an arrest in respect of an offence

Legislation Cited: 

Crimes Act 1900 (ACT) ss 160, 212, 219

Bail Act 1992 ss 49, 56A,

Legislation Act 2001, ss 139, 142

Magistrates Court Act 1930, s 42

Criminal Law (Sentencing) Act 1988 (SA) s 30

Crimes (Amendment) Ordinance (No.2) 1988, s 358AC

Crimes Act 1914 (Cth), ss 46, 47, 48A

Crimes Legislation Amendment Act 1987

Cases Cited: 

May v O’Sullivan (1955) 92 CLR 654

DPP (NSW) v Elskaf [2012] NSWSC 21

R v Barlow (1997) 188 CLR 1

Kingswell v R (1985) 159 CLR 264

Andrews v Thomson [2018] ACTCA 53

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Martino Developments Pty Ltd v John Doughty [2008] VSC 517

The Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110

PNJ v R (2009) 252 ALR 612

Parties: 

Katie Mary Wales (Informant)

Saleh Hassan Majeed ( Defendant)

Representation: 

Solicitors

Director of Public Prosecutions

ACT Legal Aid ( Defendant)

File Numbers:

CC 9977 of 2024

CC 9978 of 2024

MAGISTRATE TEMBY:

Introduction

1․On 11 October 2023, Constables Koppie and Wales were on patrol in Isabella Plains, where they encountered the Defendant, Mr Majeed. They recognised him because he was required to report to the Tuggeranong police station, to which they were both attached, as part of his bail conditions.

2․It is alleged that Constable Wales arrested Mr Majeed for breaching his bail conditions, but that he then escaped before being captured again about 100 metres away. He is charged with an offence of having been ‘lawfully arrested in respect of an offence under a law of the Territory’, he escaped from that arrest..

3․At the conclusion of the Prosecution case, Mr Majeed made a “no case” submission. For the reasons which follow, I do not accept that submission. Mr Majeed has a case to answer.

The no case submission

4․Mr Majeed is charged under s 160 of the Crimes Act 1900 (ACT) (Crimes Act). That provision states, relevantly (emphasis added):

Escaping

A person who has been lawfully arrested … in respect of an offence against a law of the Territory … and who escapes from that arrest … commits an offence.

5․The parties agree that the elements of the charged offence are:

(a)The Defendant had been lawfully arrested.

(b)The Defendant was arrested in respect of an offence against a law of the Territory.

(c)The Defendant escaped from the lawful arrest.

(d)The Defendant intended to escape from that lawful arrest.

6․Mr Majeed’s no case submission focuses on the second of the above elements. Mr Majeed submits that, taking the Prosecution case at its highest (including by accepting that he was lawfully arrested before escaping, which Mr Majeed disputes), the Prosecution case must fail because he was not arrested ‘in respect of an offence’.

Principles to be applied in determining a no case submission

7․The Prosecution highlights the following statement of the High Court, in May v O’Sullivan (1955) 92 CLR 654, as identifying the overarching test to be applied in determining a no case submission. At [7], the Court said:

When, at the close of the case for the prosecution, a submission is made that there is "no case to answer", the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law.

8․I also note the following summary of the principles to be applied by a Magistrate when determining a no case submission, as articulated by Garling J in DPP (NSW) v Elskaf [2012] NSWSC 21, at [47]:

47.The legal principles applicable by the Magistrate at the conclusion of the evidence called by the prosecution in a summary proceeding are well known, but is worthwhile restating them in a succinct way:

(a)  at the end of the prosecution evidence, it is open to a defendant to make a "no case" submission, which is determined by the Court as a matter of law: Cox v Salt (1994) 12 WAR 12 at 14; Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; 122 A Crim R 166 at [48]- [50] per Ipp AJA (Powell and Giles JJA agreeing);

(b)   the standard of proof to be applied in a no case submission is proof beyond a reasonable doubt: R v Murphy (1985) 4 NSWLR 42 at 69B;

(c)   the question to be determined is whether on the evidence, the defendant could be lawfully convicted of the offence charged: May v O'Sullivan [1955] HCA 38; 92 CLR 654 at 658; R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 at [127] per Dunford J (Greg James J agreeing);

(d) the determination of a no case submission is based upon all of the prosecution's evidence, if accepted, and

(i) taken at its highest and strongest: DPP v Lee [2006] NSWSC 270 at [31]; Wunderwald at [28];

(ii) even if it is tenuous, inherently weak or vague: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214-5;

(iii) unless the evidence is inherently incredible: Haw Tua Tau v Public Prosecutor [1982] 1 AC 136 at 151; and

(iv) unless the evidence is manifestly self-contradictory or the product of a disorderly mind: R v Bilick (1984) 36 SASR 321 at 337; Cox at 15; Marsden at [50].

(e)   a no case submission should not be rejected even if the prosecution case is a weak one, because the finding that there is a prima facie case, calls upon the defendant to make answer to that case. There is no reason why a weakness in the prosecution case may not be eked out by something in the case for the defence: Zanetti v Hill [1962] HCA 62; 108 CLR 433 at 442-443 per Kitto J; Wunderwald at [26];

(f)    a no case submission is to be kept distinct from any subsequent decision involving a question of fact, namely whether to accept the evidence of the prosecution witnesses or any of them, beyond a reasonable doubt. This distinction is no empty formality: DPP v Lee at [32].

Summary of decision

9․Mr Majeed has not satisfied me that he has no case to answer.

10․I accept Mr Majeed’s submission that he was arrested for breaching a condition of bail, and that breaching a condition of bail is not an offence. However, I accept the Prosecution’s submission that his arrest was nevertheless in respect of an offence, being the offences with which Mr Majeed had been charged at the time, in relation to which he had been granted bail. Those were offences against laws of the Territory.

11․I do not consider that s 160 is restricted to circumstances where a person is arrested in relation to conduct suspected to constitute an offence.

What was the basis for the Defendant’s arrest?

12․For the purposes of this decision, consistently with how the no case submission was put by Mr Majeed, I accept Constable Wales’ evidence that:

(a)she saw Mr Majeed when she was on patrol with Constable Koppie;

(b)she was advised by ACT Policing Communications that Mr Majeed was on the breach of bail list;

(c)Mr Majeed ran away, however Constable Wales located him hiding behind some bushes;

(d)she grabbed Mr Majeed by the right arm and said: ‘Saleh, you’re under arrest for breach of bail’;

(e)Mr Majeed said: ‘I give up, I’m handing myself in’, but pulled away from Constable Wales’ grip and began running away;

(f)Constable Wales chased Mr Majeed for about 100 metres before catching up to him and taking him to the ground, at which point two other officers, First Constable Brettel and Constable Adams, assisted Constable Wales to put handcuffs on Mr Majeed; and

(g)Constables Wales and Koppie then conveyed Mr Majeed to the ACT Watch House.

13․Mr Majeed identified a number of issues with respect to the credibility of Constable Wales’ evidence, however those issues do not need to be addressed for the purposes of dealing with his no case submission which, as I have noted, was put on the basis that the Prosecution case be taken at its highest.

14․Constable Wales’ evidence is clear that she arrested Mr Majeed because he was in breach of his bail conditions, although it appears that she did not know, at the time she arrested Mr Majeed, what condition of bail he had breached.

15․Constable Wales had been advised by ACT Policing Communications that Mr Majeed was on the latest edition of the breach of bail list and she gave evidence that she understood that s 56A of the Bail Act 1992 (Bail Act) required her to bring Mr Majeed to court. Section 56A permits a police officer to arrest a person where the police officer believes, on reasonable grounds, that the person has failed to comply with a bail condition.

16․While Constable Wales also gave evidence that she considered alternatives to arrest, she does not appear to have done so in the context of considering whether it was appropriate to arrest Mr Majeed under s 212 of the Crimes Act. Section 212, which requires an officer to consider alternatives to arrest, also requires that the police officer suspect, on reasonable grounds, that the person being arrested has committed (or is committing) an offence. Constable Wales did not give any evidence that she considered Mr Majeed had committed an offence.

17․The “charge sheet” that was produced by police in relation to Mr Majeed’s arrest states, under the heading ‘Act and Section under which proceedings taken or charge laid’: ‘IN CONTRAVENTION OF SECTION 56A(2) OF THE A.C.T. – BAIL ACT 1992 (ACT)’. However, Mr Majeed was not, in fact, charged with any offence for breaching his bail conditions.

18․I read this document as confirming that the Defendant was arrested pursuant to s 56A of the Bail Act. For the purposes of determining Mr Majeed’s no case submission, I assume that Mr Majeed was lawfully arrested under that provision by Constable Wales prior to him running away from her.

19․In written submissions received after the hearing, the Prosecution’s submitted that the Defendant was arrested for breaching bail conditions he had entered into with respect to charges of escape from arrest or custody (23/7882), drive while disqualified (23/7884), aggravated robbery (23/8831) and take motor vehicle without consent (23/8833).

20․No evidence was led at the hearing as to the conditions of Mr Majeed’s bail, or the charges with respect to which he had been granted bail at the time of his arrest. However, the parties agreed that I could interrogate the relevant court files to confirm the accuracy of the Prosecution’s submission, which I did.

Breach of a condition of bail is not an offence

21․At the hearing, the parties’ submissions appeared to proceed on the basis that Constable Wales’ arrest of Mr Majeed will have been ‘in respect of an offence’ only if the conduct with respect to which Constable Wales arrested Mr Majeed (the breach of his bail conditions) constituted an offence. Mr Majeed submitted that breaching a condition of bail is not an offence, whereas the Prosecution submitted that a failure to comply with bail conditions is an offence against section 56A of the Bail Act.

22․However, in written submissions, the Prosecution accepted that breaching a condition of bail is not an offence. That concession is rightly made.

23․As is clear from the wording of the provision, s 56A of the Bail Act provides a power to arrest where a person has failed to comply with a bail condition. It neither imposes an obligation on a person subject to bail to comply with a condition of their bail nor any punishment or penalty for a failure to do so. It therefore does not create an offence: R v Barlow (1997) 188 CLR 1, at 8-9; Kingswell v R (1985) 159 CLR 264 at [9] per Gibbs CJ, Wilson and Dawson JJ; Andrews v Thomson [2018] ACTCA 53 (Andrews v Thomson at [29].

24․In Andrews v Thomson, the principal issue in contention was whether a police officer was entitled to enter a person’s home to effect an arrest in circumstances where they believed the person was in breach, or about to breach, a condition of bail. At [29], the Court said:

… s 56 does not create any offence. It does no more than allow a police officer to arrest a person who he or she suspects on reasonable grounds has failed to comply with a bail condition or will not comply with a bail condition. The officer has no avenue available to him or her to obtain a warrant to arrest the person on bail.

25․In response to Andrews v Thomson, the Bail Act was amended by the Crimes Legislation Amendment Act 2019 to provide police officers with certain powers when arresting a person in relation to a failure to comply with a condition of their bail. However, those amendments did not create an offence of failing to comply with bail.

26․Accordingly, if s 160 does require that the conduct with respect to which a person is arrested constitute an offence, in order for the arrest to be ‘in respect of’ an offence, the Prosecution’s case must fail because Mr Majeed was arrested for breaching a condition of bail, which is not an offence.

Prosecution’s alternative argument – an arrest under s 56A of the Bail Act is in respect of the offences in relation to which Mr Majeed was granted bail

27․In the Prosecution’s written submissions, the Prosecution submitted, at [52], that:

… where a defendant is granted bail on a particular offence, breaches that bail, and is arrested for the breach, the arrest is connected to the offence for which bail was granted and can be said to be in respect of the offence.

28․The Prosecution submitted that the phrase ‘in respect of’ is sufficiently broad to have that result and that such an interpretation is consistent with the purpose of s 160 of the Crimes Act. The Prosecution submitted, at [43], that:

… s 160 purports to create a broad offence relating to escape from lawful custody, arrest or detention, and that limiting it such that it applies only in relation to the time of arrest for an offence would exclude from the scope of criminality escapes in relation to arrest not only for breach of bail conditions but also for breaches such as those in relation to a condition of a good behaviour order, a periodic detention order or a suspended sentence order.

29․Mr Majeed elected not to file any written submissions in response to the Prosecution’s alternative argument.

The question to be answered

30․Accordingly, the question to be answered is, is an arrest under s 56A of the Bail Act for breaching a condition of bail an arrest with respect to the offences in relation to which bail has been granted (being a Territory offence), or does s 160 of the Crimes Act require a more immediate connection between the reason for the arrest and a Territory offence (such as will exist where a police officer arrests a person under s 212 of the Crimes Act where a person is arrested in relation to conduct suspected to constitute an offence).

31․Ultimately, the answer to this question is the product of an exercise in statutory interpretation, the approach to which is set out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]:

… The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole …In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is structured”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

32․Regard must also be had to ss 139 to 142 of the Legislation Act 2001. Sections 139 and 142 of that Act provide that, in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation and that consideration may be given to extraneous material, including any explanatory statement for the bill that became the Act.

A preliminary issue – the reference to an offence in s 160 of the Crimes Act encompasses an alleged offence

33․Section 160 of the Crimes Act applies where, relevantly, a person is arrested in respect of ‘an offence’. It is clear that the reference to ‘an offence’ encompasses ‘an alleged offence’.

34․There are limited powers of arrest and, in most cases, they will apply prior to the determination of the person’s guilt. The key powers of arrest contained in the Crimes Act are sections 212 and 219.

35․Section 212 of the Crimes Act gives police the power to arrest a person, without a warrant, where an officer reasonably suspects that a person has committed an offence. Similarly, s 219 of the Crimes Act gives an issuing officer the power to issue a warrant for a person’s arrest where an informant believes that the person has committed an offence. Obviously enough, at the time these powers are exercised, no offence will have been proved.

36․The power given to police by s 56A of the Bail Act to arrest a person for failing to comply with a bail condition will also apply much more frequently to circumstances where a person is on bail prior to the determination of guilt, than after that determination. That is because the time between a person being granted bail and a determination of their guilt being made will almost always be longer than the time between a finding of guilt being made (which may never be made in some cases in any event) and the time when the defendant is sentenced.

37․Similarly, under s 49 of the Bail Act, a court may issue a warrant to arrest a person where the person gives an undertaking to appear before the court and fails to do so. As in relation to s 56A, this provision will apply much more frequently to circumstances where a person is on bail prior to the determination of a person’s guilt, than after that determination.

38․Under the Bail Act, ‘offence’ is explicitly defined to include an alleged offence: Bail Act, dictionary.

39․Finally, I note that, under s 42 of the Magistrates Court Act 1930, a Magistrate may issue a warrant for a person’s arrest to answer to an information laid before the Magistrate. That power is, of course, only exercisable prior to the determination of whether the matters alleged in the information are established.

40․Accordingly, it would severely restrict the operation of s 160 were it limited to circumstances where the person who had escaped from arrest had already been found to have committed an offence. As discussed later in these reasons, limiting the application of s 160 is not consistent with the provision, which was intended to establish a comprehensive escape regime.

41․Thus, the application of s 160 of the Crimes Act is not limited to escapes from arrest in relation to proved offences, but extends to circumstances where it is alleged that someone has committed an offence, whether formally through a charge or by virtue of a belief or suspicion formed by the arresting officer.

Interpretation of s 160 of the Crimes Act

Meaning of the phrase ‘in respect of’

42․The phrase ‘in respect of’ is a phrase that embraces a connection between two things that is not necessarily direct or immediate. As Vickery J said in Martino Developments Pty Ltd v John Doughty [2008] VSC 517, at [104]:

According to their natural and ordinary meaning the words ‘in respect of’ have a very wide scope. These words have been held to be “difficult of definition” but to have “the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer”.

43․The footnote to the above paragraph cites The Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111 per Mann CJ and continues:

The width of the phrase “in respect of or in relation to” was also stressed in the English case of Paterson v Chadwick [1974 2 Al ER 772 where Boreham J adopted the comments of Mann CJ. These or similar observations have been cited in numerous cases: see, Powers v Maher [1959] HCA 52; (1952) 103 CLR 478; at 484-485, per Kitto J; Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513 at 533, per Toohey J; Construction Industry Long Service Leave Board v Irving as Administrator of Bettaform Constructions (SA) Pty Ltd (8 May 1997, 23 May 1997) at 13, per Spender, Drummond, Sackville JJ, in relation to Corporations Law s 556(1)(g)(ii) and s 556(1)(g)(iv)). See also Shell New Zealand v CIR (1994) 16 NZTC 11 303 at 306 which endorsed the very wide meaning of the phrase ‘in respect of or in relation to’ (per McKay J).

44․An example of a broad interpretation being given to the phrase ‘in respect of an offence’ is the High Court decision in PNJ v R (2009) 252 ALR 612, which equated the phrase to the concept of ‘referable to’. The Court was considering the meaning to be given to the phrase in the context of s 30 of the Criminal Law (Sentencing) Act 1988 (SA), which permitted a sentencing court to take time spent by a defendant in custody into account in determining the appropriate commencement date for a sentence of imprisonment.

45․The Court said, at [17], that ‘No narrow construction should be given to the words “time in custody in respect of an offence’. At [18], the Court said:

If a person is charged with an offence, taken into custody, and later convicted of that offence, there is no doubt that s 30(2) would apply. But if, as is often the case, the charge that is laid at the time of an offender's arrest is not the charge of which the offender is later convicted, it does not follow that the time served cannot be described as "time in custody in respect of an offence" of which the offender is later convicted. The question is whether the time in custody is "in respect of" (which is to say, is referable to) the offence in question. And where, as here, the applicant's conduct was complete when he was taken into custody but the offence of murder was not complete until the victim died, the expression "time in custody in respect of an offence" may be given the application that has been described.

46․Of course, the scope of the phrase ultimately needs to be interpreted having regard to the context in which it appears in s 160 of the Crimes Act. As Vickery J said, at [107], footnotes omitted:

However, the case law demonstrates that the reach of the words ‘in respect of’ will very much depend on the context in which the words appear. Some subject matters are simply too far removed to be regarded as being ‘in respect of’ each other. The ambit conferred on the words will reflect the statutory text and context in which they appear, and the purposes of the particular legislation.

47․I have considered that context below.

The connection between a defendant’s charged offences and his bail

48․The source of the obligation to comply with a condition of bail, where bail is granted by the court, is the order of the court granting bail. Under s 19 of the Bail Act, the court has power to grant bail ‘to an accused person who is being held in custody in relation to an offence with which the person has been charged’. That is, bail is granted in relation to an offence with which a person has been charged.

49․Here, bail had been granted to the Defendant in relation to the charged offences of escape from arrest or custody, drive while disqualified, aggravated robbery and take motor vehicle without consent. Each of those offences is an offence against a law of the Territory.

50․Accordingly, bail had been granted to the Defendant in relation to offences against laws of the Territory. Conditions of bail had been imposed on him under s 24 of the Bail Act.

51․In circumstances where bail is granted in relation to an offence (relevantly, here, a Territory offence) – that is, bail is directly connected to an offence – and given the width of the phrase ‘in respect of’, I am of the view that an arrest performed for a breach of bail is an arrest that is in respect of an offence (the offences in relation to which bail was granted). For the reasons set out below, that view is consistent with the purpose of s 160 of the Crimes Act and its legislative history.

Purpose and legislative history of s 160 of the Crimes Act

52․Section 160 of the Crimes Act was originally inserted into the Crimes Act as s 358AC by the Crimes (Amendment) Ordinance (No.2) 1988. It was relevantly in the same terms.

53․The Explanatory Statement for the Ordinance noted that sections 358AA to 358AH corresponded to sections 46 to 48A of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act). The Explanatory Statement identified that the intention was that the escape regime in the Commonwealth Crimes Act deal with offences against the law of the Commonwealth and a Territory (including the ACT), whilst the Ordinance escape regime would deal with offences against the law of the ACT, a State or another Territory. Clause 9 of the Explanatory Statement said:

It is intended that the Crimes Act 1914 apply to escapes outside the ACT of both ACT and Commonwealth offenders and to escapes of Commonwealth offenders within the ACT, and that the Crimes Act 1900, as amended by this Ordinance, apply to offenders within the ACT.

54․Prior to the introduction of sections 46 to 48A of the Crimes Act 1914 (Cth), which provided for a more detailed regime that would apply to escapes from criminal detention than had previously been in place, the Commonwealth Crimes Act relevantly contained only s 47. At the time of the introduction of sections 46 to 48A, section 47 was in the form it was in following its amendment by the Crimes Legislation Amendment Act 1987. It read:

A person who has been lawfully arrested, is in lawful custody, or is lawfully detained during the Govern-General’s pleasure, in respect of an offence against a law of the Commonwealth or of a Territory and who escapes from that arrest, custody or detention is guilty of an offence.

55․It may be seen that the language of that provision is similar to that used in s 160 of the Crimes Act. As noted, this reflects the fact that the precursor to s 160 (s 358AC) was intended to correspond to the equivalent provisions of the Commonwealth Crimes Act – ss 46 to 48A – which themselves were based on s 47 of the Commonwealth Crimes Act. The legislature must be taken to have understood the relevant legislative history of s 47 of the Commonwealth Crimes Act when making the Crimes (Amendment) Ordinance (No.2) 1988.

56․The Explanatory Memorandum for the Crimes Legislation Amendment Bill 1987 stated that one of the purposes of the amendments to s 47 of the Commonwealth Crimes Act was to ‘Provide comprehensive “escape” provisions to cover persons in custody for offences against Commonwealth and Territory laws”. Previously, section 47 only applied to an escape from custody where a person was ‘in lawful custody after conviction for any offence against the law of the Commonwealth’.

57․Not only did the amendments to s 47 increase the jurisdictional reach of the provision (from Commonwealth to both Commonwealth and Territory offences) but it also increased the breadth of the provision such that it applied not only to a person who escaped from custody having been sentenced but also to other circumstances in which a person was lawfully detained, including where a person had been arrested.

58․As noted in the Explanatory Memorandum, the amendments to s 47 were intended to provide a comprehensive escape regime covering persons in custody. The evident purpose was that the provision was to deter people from escaping from custody (including people who had been arrested).

59․I note that the new s 47 did not adopt the word ‘for’ that had previously been used in s 47 (where it applied where a person was in custody for an offence) but chose instead to use the phrase ‘in respect of’ (so that it applied where a person was in custody or arrested in respect of an offence).

60․In context, I consider that the phrase ‘in respect of’ is broader in its reach than the word ‘for’. However, regardless of that view, it is clear that the legislature made a deliberate choice to use a phrase that has a wide scope. As I have noted above, that scope embraces a connection between two things that is not necessarily direct or immediate.

61․Given the language of the provision, and its purpose of creating a comprehensive escape offence regime, I am of the view that the phrase ‘in respect of’ in s 47 of the Commonwealth Crimes Act, and s 160 of the Crimes Act, should be interpreted broadly. Specifically, in the case of an arrest, that it should not be limited in its application to circumstances where an arrest is made for conduct suspected of constituting an offence.

62․Limiting the meaning of the provision in that way would not achieve the purpose of the provision. As the Prosecution notes in its written submissions, doing so would exclude from the scope of the provision not only escapes in relation to arrests for breaches of bail conditions, but also escapes for arrests in relation to breaches of conditions of good behaviour orders and suspended sentence orders as well.

63․Insofar as arrests made under s 56A of the Bail Act are concerned, I note that it was inserted into that Act by the Bail Amendment Act 2004. The power now contained in section 56A of the Bail Act was previously contained in section 215 of the Crimes Act in substantively the same terms. Section 212 of the Crimes Act was also in substantively the same terms.

64․That is, within the Crimes Act, alternative sources of power were provided to a police officer to arrest a person without a warrant. The preconditions to the exercise of those powers were different (s 212 requiring the police officer to form a suspicion that the person had committed an offence, and s 215 requiring the police officer to believe that the person had failed to comply with a bail condition), but the importance of deterring people from escaping from arrest on either basis was similar. The intention of providing for a comprehensive escape provision regime would not be achieved by applying s 160 to an escape from only one of those kinds of arrest.

Conclusion

65․The phrase ‘in respect of an offence’ in s 160 of the Crimes Act is sufficiently broad to apply to an arrest under s 56A of the Bail Act for breaching a condition of bail, with the relevant offences being the charged offences in relation to which bail has been granted.

66․Section 160 is not restricted to circumstances where a person is arrested in relation to conduct suspected to constitute an offence. Nor is it limited to proved offences, but extends to circumstances where it is alleged that someone has committed an offence, whether formally through a charge or by virtue of a belief or suspicion formed by the arresting officer.

Determination

67․Having regard to the foregoing reasons, Mr Majeed’s arrest under s 56 of the Bail Act was in respect of the Territory offences of escape from arrest or custody, drive while disqualified, aggravated robbery and take motor vehicle without consent. Accordingly, relevant to the second element of the charged offence, there is evidence that Mr Majeed was arrested with respect to an offence against a law of the Territory.

68․Accordingly, I dismiss Mr Majeed’s no case submission. He does have a case to answer.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.

Associate: Niamh Dwyer

Date: 3 September 2024