R v McClean

[2008] NSWLC 11

Local Court of New South Wales

CITATION:	R v McClean [2008] NSWLC 11
JURISDICTION:	Criminal
PARTIES:	Police McClean
FILE NUMBER:
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	05/29/2008
MAGISTRATE:	Magistrate D Heilpern
CATCHWORDS:	Police Powers, “execution of duty”, arrest and investigation
LEGISLATION CITED:	s58 Crimes Act NSW 1900 s99 Law Enforcement (Powers and Responsibilities) Act ss11 and 12 Law Enforcement (Powers and Responsibilities) Act
CASES CITED:	Adams v Kennedy and Ors [2000] NSWCA 152 Christie v Leachinsky (1947) AC 573 Coleman v Power and Ors [2004] HCA 39 DPP v AM [2006] NSWSC 348 DPP v Carr [2002] NSWSC 194 Director of Public Prosecutions Reference No 1 of 1993 R v K (1993) 118 ALR 596 Fleet v District Court of NSW & ors [1999] NSWCA 363 Smith v. Corrective Services Commission (N.S.W.) [1980] HCA 49; Williams v R [1987] HCA 36 Zaravinos v State of New South Wales [2004] NSWCA 320
TEXTS CITED:
REPRESENTATION:	Horan (Police Prosecutor) Moody of Counsel
ORDERS:

Reasons for Decision

1 This is a matter where the defendant has been charged with two offences – assault police and resist arrest, both charges under s58 of the Crimes Act 1900. The hearing thus far has been conducted on the basis of a preliminary voir dire where the brief has been handed up. I am tasked to determine two matters in the voir dire; the admissibility of the evidence pursuant to s138 of the Evidence Act and whether the prosecution have proved beyond a reasonable doubt that the police were acting in the execution of their duties.

2    This judgment is written without the benefit of transcript.

The Facts

3    The evidence on the voir dire consists of five police statements from which can be gleaned the following timeline for the evening of 30 November 2007 and early morning 1 December 2007:

At 11.15pm Constable Eugenio and Constable Billing arrive at 35-47 Wilson Street Darlinghurst in relation to radio call re “a malicious damage occurring now”. Upon arrival they saw the accused and a male companion Mita standing on the first level balcony in front of unit 108.


Constable Billing asked why they were there. She was told by the defendant that the lady who lived in unit 108 had a dog that did not belong to her, that it once belonged to their friend who had recently passed away.


Constable Billing spoke to the resident of unit 108 who told her that they (ie the defendant and Mita) had been banging on the door and window, and that she wanted them to leave her alone. Constable Billing returned to the defendant and Mita.


By this time Senior Constable Cameron had arrived, in response to an “urgent” radio call that “two people were attempting to break into a unit at that location.” She joined Const Billing, Const Eugenio, the defendant and Mita.


Senior Constable Williams and Constable Carter joined the group shortly afterwards. Senior Constable Williams says that the call he responded to was for a “suspected aggravated break enter and steal offence which was in progress”.

The area in which they all were present was a walkway approximately two metres wide passing outside the front entrance doors to the units, and joins one end of the unit complex to the other.


Senior Constable Cameron then states she had a conversation with the accused as follows:

“Cameron: “What is your name? Do you have any ID on you?


The accused ranted for a while saying things like;


“Aren’t you supposed to be professional?” “We were just worried about the dog”


She continued with similar statements before handing me her license. I handed this license to Constable Eugenio and said to him;


“Can you record her details”.



Eugenio recorded the details of her drivers license in his notebook. Senior Constable Cameron then had a conversation with the occupant of unit 108. She saw items on the kitchen sink that appeared to be knocked over. The occupant was difficult to understand and distressed. Constable Cameron then returned to have a conversation with Senior Constable Williams.


While she was away, Senior Constable Williams noticed that the defendant was raising her voice, that her clothing was dishevelled, and he could smell intoxicating liquor on her breath. He tuned and faced her and said:

“I’m John Williams and I’m the supervisor from Redfern Police Station. As you have been told we have been called here because someone has tried to break into this unit while an elderly lady is at home inside. I have been informed that you were in the immediate vicinity at the time and are suspected of trying to break into this lady’s unit. As you’ve been told before you are not obliged to say or do anything, but anything that you say or do, will be taken down and used in evidence. Do you understand that?”

The defendant said something (unknown) at this point.

Senior Constable Williams said

“At this point you have to wait here until we make further inquiries about what has happened. We will get some details from you and carry out some checks. Failure to comply and you may be committing an offence. Do you understand that?”


The defendant said “We don’t have to stay here”.


Senior Constable Williams said “You have to stay here until we finish our inquiries and if there is no offence committed then you will be free to go”.



After some discussion with the male Mita, Senior Constable Williams said:

“We will just do some checks on the radio and after we have completed our inquiries you’ll be right to leave”.


Constable Eugenio took his notebook down to the vehicle on the ground level and sought information regarding the accused. This took some five minutes. He remained there until the information was received, and then returned once the fracas began.


Again from Senior Constable Cameron’s Statement:


At this time the accused walked toward Senior Constable Williams and said words to the effect of “I don’t have to stay here”. Senior Constable Williams moved and stood in front of the accused (sic) arm and said: “You can’t go yet”. The accused put both arms up and pushed Senior Constable Williams in the chest with her inner forearms. This caused Senior Constable Williams to momentarily lose his balance and step backwards. He then moved forward and took hold of the accused’s right arm, she then immediately began to pull her arm away from him. I said: “That’s it you’re in”.


Constable Billing describes this similarly:

“The accused wanted to leave and LSC Cameron told her that she couldn’t. The accused got up and started to walk away. LSC Williams stood in front of her and stopped her from leaving”

4    A struggle then took place with the defendant continuing to attempt to pull free. She grabbed hold of the hand rail and would not release it until police, as described by Senior Constable Williams,

“escalated the force required and inflicting severe discomfort upon the accused”.

5    Eventually she was handcuffed with her wrists behind her with the assistance of other police. She was then told that she was under arrest for assault, and cautioned. She was transported to the police station, charged and released some hours later on a court attendance notice without bail or any bail conditions.

6    It is the push to Senior Constable Williams that gives rise to the assault charge, and the attempts to pull free and difficulties in handcuffing by Constable Cameron that give rise to the resist charge. It is conceded by the prosecution that the defendant was not charged in relation to the original matter.

Submissions Defendant

7 The defendant submits that an element of each offence is that I must be satisfied beyond a reasonable doubt that the police were acting in the execution of their duty. Further, that pursuant to s99 Law Enforcement (Powers and Responsibilities) Act (LEPRA) I cannot be satisfied that the police were acting in the execution of their duty. Further it is submitted that the detention or arrest in the first instance was so that an investigation could take place, and that is not a factor permitting arrest at common law or by the statute. Arrest later seems to have continued for the purpose of checking the identification by radio already given. Arrest is a last resort, and to arrest for investigation is ill advised and unnecessary. Accordingly I could not be satisfied beyond a reasonable doubt that the police were acting in the execution of their duty.

8    Alternately, the defendant submits that the evidence is inadmissible pursuant to s138 of the Evidence Act, in that it was illegally or improperly obtained – DPP v Carr [2002] NSWSC 194, and Director of Public Prosecutions v AM [2006] NSWSC 348. The expected consequence of an improper arrest in these circumstances was the resultant actions of the defendant.

Submissions Prosecutions

9 The prosecution submits that the defendant was under arrest, and that the police were empowered to place the defendant under arrest as they had a reasonable suspicion that she had committed an offence. They were investigating the offence and were entitled to ensure a suspect was detained whilst that investigation took place. The prosecution submit that the “police required her to be there for the purposes of investigating the matter” Further, ss 11 and 12 of LEPRA make it clear that the police can require identification from a person, and that it is an offence not to provide it. The prosecution argue that it flows from those sections that the police have the power to detain a person while their identity is being checked. Accordingly, it is submitted, the police were acting in the lawful execution of their duty, and the arrest was for the purpose of s99(3)(a), of ensuring that the defendant’s identity was confirmed so that they could be brought before a court. In terms of s138 the prosecution concede that the assault police was at the lower end of the scale for this type of offence.

Further Submissions

10    Preparation of the reasons for decision in this matter led me to the conclusion that I required some further submissions from the parties, relating to the cases of Adams v Kennedy and Ors [2000] NSWCA 152 and Christie v Leachinsky (1947) AC 573. Mr Horan confirmed his submission that the arrest was lawful in that the arresting officer had reasonable grounds for suspecting an offence based on the radio message he had received, and the information received from other police. He gave clear reasons for the arrest, that it was not arrest for questioning, and that the other suspect was dealt with by a court attendance notice as he remained on the scene and did not resist. Accordingly, the police were acting in the execution of their duty. Ms Moody reiterated her previous submissions.

“Execution of Duty”

11    For each of the offences an element required to be proved is that the police were acting in the execution of their duty: (my emphasis)

58 Assault with intent to commit a serious indictable offence on certain officers


Whosoever:


assaults any person with intent to commit a serious indictable offence, or


assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or


assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence,


shall be liable to imprisonment for 5 years.

12    It is now apparent that if an arrest is unlawful, (or that there is doubt as to this issue), the police officer is not acting in the execution of his duty, and the charge is to be dismissed. This was not always so clear because of the relatively broad concept of execution of duty in Director of Public Prosecutions Reference No 1 of 1993 - R v K (1993) 118 ALR 596, approved of in DPP v Gribble NSWSC [2004] NSWSC, where the court was concerned with a general power to protect the safety of a member of the public tending to wander and remain on a dangerous road.

13    The High Court considered this issue specifically in Coleman v Power and Ors [2004] HCA 39 per McHugh at 118: (my emphasis)

Each of the sub-sections under which the appellant was charged is predicated on the lawfulness of the action being resisted or obstructed. It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing. In Re K , after reviewing the authorities on the scope of an officer's duty, the Full Court of the Federal Court said[94]:

"The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein."


An officer who unlawfully arrests a person is not acting in the execution of his or her duty. In Nguyen v Elliott [95], the Supreme Court of Victoria set aside convictions for assaulting and resisting an officer in the execution of his duty when the arrest was unlawful and therefore not made in the execution of the officer's duty. The accused was approached by two constables who believed that he might have been involved in drug dealing. The accused attempted to walk away but was detained by the first officer who wished to search him. The accused became aggressive and kicked the first officer. The second officer crossed the street to assist the first officer to control the accused. The accused was forced into the police vehicle and continued to protest. He was then taken out and handcuffed during which the accused bit the second officer on the hand. Before the magistrate, the first officer acknowledged that he did not reasonably suspect that the accused was in possession of drugs but was merely curious about whether the accused possessed drugs. The charges relating to the first officer were dismissed. The prosecution claimed the second officer's position was different because he had good reason to believe he was lawfully assisting his partner to effect an arrest for what the second officer assumed was an assault on the first officer. Hedigan J held that the conviction for resisting arrest could not stand. His Honour said:

"... it cannot be said that a police officer is acting in the execution of his duty to facilitate an unlawful search and arrest. The right of citizens to resist unlawful search and arrest is as old as their inclination to do so. The role of the courts in balancing the exercise of police powers conferred by the State and the rights of citizens to be free from unlawful search and seizure may be traced through centuries of cases."


In setting aside the conviction, Hedigan J applied the decision of the Full Court of the Supreme Court of Victoria in McLiney v Minster where Madden CJ said[96]:

"... it is an important principle of law that no man has the right to deprive another of his liberty except according to law, and if he does so the person so unlawfully deprived has a perfect right to use reasonable efforts to beat him off and get out of his custody. "


Hedigan J held that, although the second officer acted in good faith, his conduct was also unlawful and he was not acting in the execution of his duty when assisting the first officer to effect an unlawful arrest…..These authorities show that once the conduct of an officer is unlawful, the level of physical response offered by an accused is irrelevant to a charge involving the "execution of duty" or "performance of duty".

14    Thus the law to be applied is that the prosecution must prove beyond a reasonable doubt that the police officer alleged to be assaulted, and the police officer alleged to be resisted were acting in the execution of their duty in the sense that the arrest was lawful.

Was the arrest lawful?

15 The law has recently been codified by the introduction of LEPRA, and I am aware of no decision of the higher courts that deals with this issue. Accordingly, it is appropriate to consider in detail the general approach of the courts regarding arrest or detention for investigation.

16    The interpretation of statutes regarding the personal liberty of persons, particularly the detention of persons ought be construed strictly - Smith v. Corrective Services Commission (N.S.W.) [1980] HCA 49;

17    The defendant referred to the cases DPP v Carr (2001) 127 A Crim R 151, and Fleet v District Court of NSW & ors [1999] NSWCA 363 (unreported 8 October, 1999). In that latter case the court found:

Nevertheless, it remains appropriate that those vested with extraordinary powers of arrest should be reminded of the need to consider whether they should be exercised in a particular case. The arrest in this case seems to have an element of the arbitrary about it, which brings to mind the tyranny Deane J warned against. Such cases are harmful to the free society we all want to preserve.

18    In Zaravinos v State of New South Wales [2004] NSWCA 320 Unreported 10 December, 2004 the Court of Appeal examined the circumstances where Mr Zaravinos had attended a Police Station at the invitation of the Police. In that case Bryson J sets out in his judgment at paragraph 37

“Arresting a person for questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of Information and Summons as an alternative course, are relevant where the validity of the exercise of the power to arrest is in question.”

19    At common law, arrest for the purpose of investigation or interrogation is unlawful. Authority for this proposition is found in Williams v R [1987] HCA 36, per Mason and Brennan JJ at 15 (my emphasis)

The provisions of s.460(1) of the Crimes Act 1958 (Vic.) correspond with the provisions of s.34A(1). In Reg. v. Larson and Lee (1984) VR 559, Hampel J. said, at p 568:

"The words 'as soon as practicable' in the section refer to the time required to bring the person arrested before a justice and not to the time which the police may choose to take after arrest to make further enquiries or conduct further investigations. The section is designed to safeguard persons in custody after arrest from being held by the police for questioning or further investigations or otherwise."


That view is surely right. If a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in custody for that purpose, and the time limited by the words "as soon as practicable" cannot be extended to provide time for interrogation. It is therefore unlawful for a police officer having the custody of an arrested person to delay taking him before a justice in order to provide an opportunity to investigate that person's complicity in a criminal offence , whether the offence under investigation is the offence for which the person has been arrested or another offence.


In Drymalik v. Feldman (1966) SASR 227, the Full Court of the Supreme Court of South Australia construed s.78 of the Police Offences Act 1953-1961 (S.A.) as requiring an arrested person to be brought "forthwith" before a justice. So construing the section, their Honours were able to distinguish Dallison v. Caffery (1965) 1 QB 348 - a case to which further reference must be made - and to follow Bales v. Parmeter and Ex parte Evers; Re Leary. And their Honours said (at pp 234-235):

" If the view is accepted that the appellants were empowered, under s.75, to make the arrest, for the purpose of bringing the plaintiff before a justice, they still had no justification in law in detaining the plaintiff in custody for a lengthy interrogation before complying with s.78."


(And cf. per Bray C.J. in Reg. v. Stafford (1976) 13 SASR 392, at pp 400-401). In Reg. v. Eyres (1977) 16 SASR 226, at p 231, Walters J., citing the speech of Lord Wright in McArdle v. Egan (1933) 150 LT 412, at p 413, held that deprivation of liberty could not be justified merely for the purpose of asking questions.


The jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences. King C.J. in Reg. v. Miller (1980) 25 SASR 170, in a passage with which we would respectfully agree (at p 203) pointed out the problems which the law presents to investigating police officers, the stringency of the law's requirements and the duty of police officers to comply with those requirements - a duty which is by no means incompatible with efficient investigation….The competing policy considerations are of great importance to the freedom of our society and it is not for the courts to erode the common law's protection of personal liberty in order to enhance the armoury of law enforcement. It should be clearly understood that what is in issue is not the authority of law enforcement agencies to question suspects, but their authority to detain them in custody for the purpose of interrogation. If the legislature thinks it right to enhance the armoury of law enforcement, at least the legislature is able - as the courts are not - to prescribe some safeguards which might ameliorate the risk of unconscionable pressure being applied to persons under interrogation while they are being kept in custody.

20    In that same judgement at 22

The jealous protection of personal liberty accorded by the common law of Australia requires police so to conduct their investigation as not to infringe the arrested person's right to seek to regain his personal liberty as soon as practicable. Practicability is not assessed by reference to the exigencies of criminal investigation; the right to personal liberty is not what is left over after the police investigation is finished.

21    In the same case Wilson and Dawson JJ found

It is beyond question that at common law no person has power to arrest a person merely for the purpose of questioning him: Beckwith v. Philby (1827) 6 B & C 635; 108 ER 585; Mathews v. Biddulph (1841) 3 Man & G 390; 133 ER 1195; Hadley v. Perks (1866) 1 QB 444; Nolan v. Clifford [1904] HCA 15; (1904) 1 CLR 429; Walters v. W.H. Smith & Son, Limited (1914) 1 KB 595; Christie v. Leachinsky [1947] UKHL 2; (1947) AC 573. The question in this case is whether a policeman has any power to defer bringing before a justice a person whom he has arrested in order to use the time to question the person or to investigate in some other way the offence or offences upon suspicion of which the arrest was made or any other offence or offences which the arrested person may have committed. Apart from the decision in Dallison v. Caffery (1965) 1 QB 348, to which we shall refer in a moment, we should have thought that the answer to that question was clear. A person who is arrested may be detained only for the purpose of bringing him before a justice (or nowadays before some other person with power to deal with him) to be dealt with according to law. For arrest is the beginning of imprisonment and, whilst it is recognized that imprisonment before trial may be necessary in the administration of criminal justice, it must be justified in accordance with the law. There must be a charge and if the person charged can establish his entitlement to bail and can furnish it, the law requires that he be released subject to any conditions which might be imposed upon him. The function of the justice in granting or withholding bail is an ancient one: 1, 2 Philip and Mary c.13; Holdsworth's History of English Law , 5th ed. (1931), vol.I, p.296. The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease.


9. This being the purpose of arrest, any delay in bringing a person under arrest before a justice, even if it is to effectuate some other purpose such as the questioning of that person in order to dispel or confirm the suspicion which was the basis of the arrest, is to defeat, however temporarily, the true purpose. Where no delay is involved, there can, of course, be no objection to the occasion of the arrest and subsequent detention being used for the purpose of further investigation of the offence in question or, for that matter, any other offences, provided the investigation is properly carried out and any necessary caution is given: see Hough v. Ah Sam [1912] HCA 78; (1912) 15 CLR 452. But to conduct an investigation which does not cut across the purpose for which a person is held under arrest is one thing; to disregard that purpose in order to carry out an investigation is another thing, however much the further investigation may be otherwise necessary or desirable. A person is not to be imprisoned otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring him before the justice to be dealt with according to law. That, as we conceive it, is one of the foundations of the common law.


10. It is by writ of habeas corpus that the immediate restoration to freedom of a person illegally detained may be achieved. That is a remedy as old as the law and was declared by the Bill of Rights 1688 to be so. We know of no authority whereby the writ may be refused upon the basis that a person, having been arrested, is required for further questioning. The imprisonment of a person can be justified only by lawful warrant or in the limited circumstances where he is held under lawful arrest for the purpose of obtaining the warrant of a justice for any further detention.


11. Because the extent of the power of arrest and the deprivation of freedom which it involves are such important matters, it is not surprising that the law has been expressed in an uncompromising way. In Bales v. Parmeter (1935) 35 SR (NSW) 182, in a passage which has frequently been cited with approval in this country, Jordan C.J. put it as follows at pp.188-189:


"But suspicion that a person has committed a crime cannot justify an arrest except for a purpose which that suspicion justifies; and arrest and


imprisonment cannot be justified merely for the purpose of asking questions ... No person is entitled to impose any physical restraint upon another except as authorised by law. This rule applies as much to police officers as to any one else, although the law allows them somewhat greater powers in this respect than it allows to other citizens. Where the imposition of physical restraint is authorised by law it may be imposed


only for the purpose for which it is authorised ...it may be imposed by a police officer in the course of arresting and bringing before a magistrate a


person for whose arrest no warrant has issued, but whom the officer, with reasonable cause, suspects of having committed a crime or an offence punishable whether by indictment or summarily under any Act. This authority existed with respect to felonies at common law. It was extended to other offences by statute - now s.352(2)(a) of the Crimes Act 1900. But the statute, like the common law, authorises him only to take the person so arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct route: Clarke v. Bailey (33 SR 303). Any detention which is reasonably necessary until a magistrate can be obtained is, of course, lawful, but detention which extends beyond this cannot be justified under the common law or statutory power. Thus, it has been held that if in the course of an arrest which is otherwise for a lawful purpose, the arresting constable takes the arrested person to some place to which it would not


be reasonable and proper to take him in the course of bringing him before a magistrate, for the purpose of searching him there, the detention in


that place and the search are unauthorised and therefore actionable: ibid."



And at p.190 Jordan C.J. answers the very question posed in this case:

"If a person has been arrested, and is in process of being brought before a magistrate questioning within limits is regarded as proper in New South Wales - indeed, within very narrow limits, it is regarded as proper in England; but a police officer has no more authority to restrain the liberty of a suspected person for the purpose, not of taking him before a magistrate, but of interrogating him, than he has of restraining the liberty of a person who may be supposed to be capable of supplying information as a witness."

22    In Adams v Kennedy and Ors [2000] NSWCA 152 the court quoted with approval the following comments from Christie v Leachinsky (1947) AC 573.

"Putting first things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. …. Blind, unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish on English soil”

23 LEPRA in its long title is said to be an Act to consolidate and restate the law relating to police powers and responsibilities. Section 99 of LEPRA is as follows:

99 Power of police officers to arrest without warrant


(1) A police officer may, without a warrant, arrest a person if:


(a) the person is in the act of committing an offence under any Act or statutory instrument, or


(b) the person has just committed any such offence, or


(c) the person has committed a serious indictable offence for which the person has not been tried.


(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.


(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:


(a) to ensure the appearance of the person before a court in respect of the offence,


(b) to prevent a repetition or continuation of the offence or the commission of another offence,


(c) to prevent the concealment, loss or destruction of evidence relating to the offence,


(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,


(e) to prevent the fabrication of evidence in respect of the offence,


(f) to preserve the safety or welfare of the person.


(4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

24 In the second reading speech of LEPRA it was stated that this section represented a codification of the common law of arrest – see Hansard, Legislative Assembly, 17 September 2002 reprinted at 626,001 Criminal Practice and Procedure, Butterworths.

Analysis

25 It is my view of s99 of LEPRA that subsection (2) states a general power, and then subsection (3) qualifies that power. The words “must not arrest” in subsection (3) are an unambiguous representation of parliamentary intent creating preconditions for a lawful arrest. Indeed, it is hard to imagine a clearer statement of parliamentary intent. Investigation is not one of these preconditions.

26 It is arguable that subsection (3) limits those preconditions to circumstances of arrest by the words “for the purpose of taking proceedings”. Thus, the argument goes, police need only have a reasonable suspicion to arrest, and then can detain for the purposes of investigation without concern for s99(3). Sections 109 to 114 of LEPRA do provide powers for detention after arrest for the purposes of investigation, however it was not submitted by the prosecution that these sections were relied upon. It is clear that those sections do not confer any power to detain a person who has not been lawfully arrested – see s 113(1)(a) of LEPRA. Further, such an interpretation would represent such a significant departure from the common law prohibition regarding arrest for investigation that it could not be said to represent a codification of the common law.

27 Thus the correct analysis is that to affect a lawful arrest the officer must first have a suspicion on reasonable grounds that the person has committed an offence. Secondly, the officer must not arrest unless it is necessary to do so to achieve one or more of the purposes set out in 99(3)(a) – (f). Detention following arrest may be permissible for the purposes of s109 to 114 of LEPRA, but only if the arrest is lawful in the first instance.

28    It is common ground that although police did not use the word “arrest”, that the defendant was in fact placed under arrest.

29 For the purposes of this judgment, I am assuming that there was a reasonable suspicion that the defendant had committed an offence, and thus that s99(2) was met. The reasons for this reasonable suspicion include the radio information, the communication with other police, the information being provided by the alleged victim, the statement of the defendant regarding the dog, the location of the accused, her manner and appearance.

30 The prosecution submit firstly that the defendant was placed under arrest early in the scenario for the purpose of investigation of the crime at hand. Clearly this is the only reasonable inference from the material tendered. In my view the contention that such an arrest is lawful is flawed for two reasons. Firstly, it is utterly inconsistent with the common law, that parliament has expressly stated that it has intended to codify. Secondly, it is not a ground to be found in s99(3). If parliament intended by legislation to grant police the power to deprive a person of their liberty in circumstances where there was a suspicion that they had committed an offence, but that there was further investigation required, then “further investigation” or some similar words would be found in s99(3). In short, such a submission is inconsistent with the clear legislative intent of s99(3) and flies in the face of the law as expressed by the highest court in this country based on centuries old common law principles.

31 The courts and the parliament have spoken loudly, clearly and repeatedly – it is not enough to arrest a person simply because there is a reasonable suspicion that they have committed an offence. Arrest will be unlawful unless it is necessary to achieve one of the purposes set out in s99(3). It is not one of those purposes that further investigation needs to take place. Arrest is a last resort. The wisdom of the common law and statutory restrictions on arrest is clear from the facts in this case – the “severe discomfort” inflicted by the police on the defendant is the almost inevitable and regrettable result. To paraphrase from the leading cases above, the right to be free from police detention or physical force is not what is left over once the police have completed their investigations. Blind, unquestioning obedience does not flourish on Australian soil either.

32 The prosecution next contend that the purpose for the arrest then became the confirmation of the defendants identification pursuant to ss 11 and 12 of LEPRA :

11 Identity may be required to be disclosed


A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred.


12 Failure of person to disclose identity on request


A person who is requested by a police officer in accordance with sections 11 and 201 to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the request.


Maximum penalty: 2 penalty units.

33 There is no contention that the police were entitled under s11 to request the identity. It was provided. If it was not then the defendant could have been guilty of an offence. Subject to s99(3) they could have been arrested for that offence. The identification in the present facts was a photo-licence, with a name address, licence number and other details. There is no evidence that there was anything remotely suspicious about the licence given, or as to why it needed to be checked. In my view, if parliament had wanted to grant police the power to detain people while their identity was confirmed with reference to an external source, then it would have clearly stated so. There is simply no evidence from which an inference can be drawn that it was necessary to arrest the defendant, or continue to arrest the defendant, to ensure her attendance at court pursuant to s99(3)(a). However, even if I am wrong as to this, in my view if the initial arrest was for the purpose of investigation, and that was unlawful, it does not matter that the purpose of the detention then changed to something else – McHugh J makes this clear in Coleman v Power. The poisoned root affects the entire tree.

34    Having read the exhibits and heard submissions from the parties I am not satisfied beyond reasonable doubt that the arrest was lawful, and accordingly am not satisfied beyond reasonable doubt that the police were acting in the execution of their duty. Thus the prosecution has failed to prove one essential element of each offence to the requisite degree and the charges are dismissed.

Section 138

35 Given my finding above it is not necessary for me to deal with the submissions on this matter. Indeed, it may be in a post LEPRA environment the number of applications under s138 based on Carr and subsequent cases decrease significantly.

Magistrate David Heilpern