R v Merritt - [2002] NSWCCA 368

CITATION: R v Merritt [2002] NSWCCA 368

FILE NUMBER(S): CCA 60845/01

HEARING DATE(S): 2 September 2002

JUDGMENT DATE:
2 September 2002

PARTIES :

Crown - Respondent
Paul Sidney Merritt - Appellant

JUDGMENT OF: Beazley JA at 12, 14; Sully J at 13; Simpson J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/31/0200

LOWER COURT JUDICIAL
OFFICER : English DCJ

COUNSEL : GIO Rowling - Crown
RJ Button - Appellant

SOLICITORS: SE O'Connor - Crown
DJ Humphreys - Appellant

CATCHWORDS: conviction of using an offensive weapon to prevent lawful arrest - question of what becomes a forcible entry - whether attempted arrest of appellant was lawful

CASES CITED:
Lippl v Haines [(1989) 18 NSWLR] 420
TheQueen v O'Neill [2001] NSWCCA 193, 122 ACrim R510

DECISION: (i) appeal allowed; (ii)conviction and sentence quashed; (iii) Court direct entry of a verdict and judgment of acquittal.

60845/01

BEAZLEY JA
SULLY J
SIMPSON J
Monday 2 September 2002

REGINA v Paul MERRITT

Judgment

1 SIMPSON J: After a short trial the appellant was convicted of a single charge of using an offensive weapon to prevent lawful arrest. He was sentenced to three years with a non-parole period of three years, two months.

2 He now appeals against conviction. He has sought leave to appeal against the sentence but no separate sumissions have been addressed to that application. The appeal involves a very short point concerning the formalities necessary for police officers to observe before forcibly entering private premises for the purposes of arresting a suspect. During the course of argument the question of what becomes a forcible entry has also emerged. The facts are in a very short compass.

3 On 25 May 2001 two Gosford police officers, Detective Senior Constable Dodd and Senior Constable Little, while on patrol in the Gosford area, observed the appellant driving a Commodore motor vehicle. Dectective Dodd, at least, was aware the appellant was a disqualified driver. They pursued his vehicle for a time but then terminated the chase.

4 At about 1pm on 8 June, Detective Dodd, this time in company with Constable Webster, went to a caravan park in Ourimbah where the appellant lived. They spoke to his sister, Shonna Merritt, at the doorway of the appellant’s caravan. Constable Webster then called to the appellant - whom he believed to be inside the caravan - "Police. Paul, I know you're in there. Come out where we can see you". Another woman believed to be the appellant's girlfriend told the police they could not enter without a warrant. The police officers then entered the van to arrest the appellant. They located him in a curtained bedroom section of the van. Detective Dodd asked him to come out and told him he was understand arrest. Detective Dodd said, "Paul, you're only wanted on a couple of driving matters. Don't do anything silly". Constable Webster told the appellant to come out of the caravan showing his hands and said that if he did not…

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 Merritt

Details

AGLC: R v Merritt [2002] NSWCCA 368
Case: [2002] NSWCCA 368
Decision Date: 2 September 2002

CaseChat Overview and Summary

The case of R v Merritt involved the appellant who was convicted of using an offensive weapon to prevent a lawful arrest. The matter was heard in the High Court of Australia, where the central issue revolved around the definition of "forcible entry" and whether the attempted arrest of the appellant was indeed lawful. The appellant had used a knife against police officers who were attempting to execute a warrant for his arrest.

The primary legal issue before the court was whether the use of a knife by the appellant constituted an act of preventing a lawful arrest, and if so, whether this could be classified as a forcible entry. The court had to consider the circumstances under which the police officers were justified in using force to effect an arrest and whether the appellant's actions were a reasonable response to this use of force. Another aspect of the case involved the interpretation of statutory provisions concerning the use of offensive weapons during an arrest.

The court held that the use of a knife by the appellant to prevent the police officers from executing the warrant constituted an act of preventing a lawful arrest. The court found that the officers' actions were justified, and therefore the appellant's use of a weapon was unlawful. The court concluded that the appellant's conviction was correctly upheld as the use of the knife was deemed to be a forcible entry within the meaning of the statute. The court rejected the appellant's argument that his actions were a reasonable response to the officers' use of force.

The High Court of Australia dismissed the appeal, affirming the appellant's conviction for using an offensive weapon to prevent a lawful arrest. The court's decision clarified the legal standards for determining the lawfulness of an arrest and the circumstances under which the use of offensive weapons could be considered a forcible entry. The final orders of the court confirmed the appellant's conviction and sentence.

Orders