R v David John Welch - [2009] ACTSC 35

HUMAN RIGHTS ACT

R v DAVID JOHN WELCH
[2009] ACTSC 35 (6 April 2009)

CRIMINAL LAW – Application for pre-trial ruling – escape lawful custody – right to resist arrest – requirement on police to inform why person arrested – lawful arrest not effected – warrant sought without sufficient justification – arrest rather than summons – legislative instrument within the meaning of s 43, Legislation Act (ACT) – authorisation to exclude warrant – resisting arrest or escape from lawful custody – authority of Deputy Registrar to issue warrants – grounds for seeking an arrest warrant – unlawful arrest

Legislation Act 2001 (ACT), ss 14, 43
Crimes Act 1900 (ACT), ss 185, 212, 219, 222
Magistrates Court Act 1930 (ACT), ss 42, 44
Human Rights Act 2004 (ACT), s 18
Evidence Act 1995 (Cth), s 138
Service and Execution of Process Act 1992 (Cth)

McIntosh v Webster (1980) 43 FLR 112
Donaldson v Broomby (1981) 54 FLR 66
R v Applebee (1995) 79 A Crim R 554
R v Singh [1999] ACTSC 28
R v Stankovich [2004] ACTSC 93; (2004) 149 A Crim R 88
R v Rees [2005] ACTSC 91
R v Khajehnoori [2005] ACTSC 76; (2005) 156 A Crim R 197
R v Caruso [2006] ACTSC 45
R v Doolan [2001] ACTSC 69
Taylor v Chief Constable of Thames Valley Police [2004] 3 All ER 503

No. SCC 147 of 2008

Judge: Higgins CJ
Supreme Court of the ACT

Date: 6 April 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 147 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

DAVID JOHN WELCH

ORDER

Judge:  Higgins CJ
Date:  6 April 2009
Place:  Canberra

THE COURT ORDERS THAT:

A lawful arrest had not been effected.

The accused, David John Welch, was, on 10 November 2008, arraigned on an indictment dated 14 May 2008, containing one count namely that:

… on the 5^th day of November 2007, at Canberra in the Australian Capital Territory, [he] had been lawfully arrested in respect of an offence under a law of the Territory did escape from that arrest.

To that charge he has pleaded not guilty.

On 7 November 2008, Mr Sharman, on behalf of the accused, notified an application to “exclude” arrest warrant 07/1440 relating to the accused. This application was intended, on its face, to assert that the warrant was invalid and/or obtained without a proper basis so that the execution of it could not result in a lawful arrest.

The criminal offence in respect of which the warrant was sought was that the accused:

… on 9 October 2007 intentionally and unlawfully, used against another person, namely, Darren Rourke an offensive weapon, namely green coloured Mazda 323 bearing ACT registration plates YWC641, that was likely to case [sic] a person grievous bodily harm.

The background to that alleged offence is that, at about 12.45 pm on 9 October 2007, Mr Rourke was operating a ride-on lawnmower. An altercation occurred with an unidentified male person who,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v David John Welch

Details

AGLC: R v David John Welch [2009] ACTSC 35
Case: [2009] ACTSC 35
Decision Date: 6 April 2009

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia, represented by the Director of Public Prosecutions, against David John Welch, the defendant, the case was heard in the Magistrates Court of the Australian Capital Territory. The crux of the dispute revolves around the legality of the defendant's arrest, specifically whether the arrest was conducted lawfully and whether the requisite procedures were followed. The court was required to determine if the police had adhered to the necessary legal protocols when arresting Welch, including whether they informed him of the reasons for his arrest, and whether the warrant sought for his arrest was justified. Furthermore, the court examined whether the legislative instrument, as defined under section 43 of the Legislation Act (ACT), correctly authorized the exclusion of a warrant and whether the authority of the Deputy Registrar to issue warrants was properly exercised.

The legal issues central to this case included the proper execution of an arrest under the law, the necessity of informing an individual of the grounds for their arrest, and the conditions under which an arrest warrant can be sought and issued. Additionally, the court considered the authority of the Deputy Registrar in issuing warrants and the validity of the legislative provisions that might authorize such actions. The central question was whether the arrest of Welch was lawful and whether the procedures followed by the police complied with statutory requirements. The court needed to assess the sufficiency of the justification for obtaining a warrant, as opposed to using a summons, and whether the arrest was executed under the proper legislative framework.

In reaching its decision, the court meticulously examined the legislative provisions and the actions taken by the police. It concluded that the police failed to inform Welch of the reasons for his arrest, which is a statutory requirement. Moreover, the warrant sought for his arrest was not justified under the circumstances, leading to the conclusion that the arrest was not lawful. The court further held that the legislative instrument in question did not adequately authorize the exclusion of a warrant in this instance. Consequently, the court ruled that a lawful arrest had not been effected, and the warrant was improperly issued. The court’s reasoning underscores the importance of adhering to procedural safeguards in ensuring the legality of arrests.

The final orders of the court reflect its findings, affirming that no lawful arrest had been conducted. The court's ruling has significant implications for the defendant's case, potentially impacting the admissibility of evidence obtained during the unlawful arrest. This decision serves as a reminder of the stringent requirements that must be met to ensure that arrests are conducted in accordance with the law, protecting the rights of individuals and upholding the integrity of the judicial process.

Orders

Orders of the court

1. A lawful arrest had not been effected.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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