CATCHWORDS:
Arrest - s33B Crimes Act 1900 - resisting arrest - lawful arrest - police - forcible entry into private home - "proper announcement" - lawful reason for entry without permission - whether circumstances amounted to implicit expression of intent to arrest - Crown appeal under s5F(2) Criminal Appeal Act 1912 - appeal dismissed.

LEGISLATION CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60150/01
MASON P
SULLY J
DOWD J
Monday 21 May 2001

REGINA v Leslie W O’NEILL

Two police officers forcibly entered the respondent’s home and placed him under arrest for breaching bail and breach of an apprehended violence order. The respondent sprayed the two officers with the contents of a fire extinguisher. The first of two counts charged against the respondent was based on s33B of the Crimes Act 1900, using “an offensive instrument...with intent to…prevent …the lawful apprehension of himself”.

The issue in this case was whether the forcible entry into the respondent’s home was preceded with the formalities the common law requires in order for the attempted arrest to be “lawful” within the meaning of s33B. On the day in question, the police officers knocked on the door of the respondent’s house and repeated numerous times “Leslie, it’s the Police. Open the door, we need to speak to you”. There was no reply, although footsteps and other noises could be heard from inside the house. This request was repeated through an open window, and again at the front door. The officers left for a short time, and returned, saying, “Leslie O’Neill, it’s the police. Open this door. We need to speak with you.” This was repeated a few more times, and met with yelling from the respondent behind the door. He yelled, “get fucked. Leave me alone. I’m not opening this door.” One of the officers replied, “Leslie, this is the police. Open this door or I will open it.” The respondent continued to yell. Shortly after this, the officers kicked down the door and entered the house. The respondent attacked them with the fire extinguisher, striking one of the officers on the head with the canister once its contents were exhausted.

Judge Mahoney QC held that due to the officers’ failure to make a “proper announcement” of intention to arrest before the forcible entry, the respondent was entitled to a verdict of acquittal by direction. This is an appeal from that judgment.

Held (by Mason P, Sully and Dowd JJ agreeing, dismissing the appeal):

The ruling given by formal reasons in the present…

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 O'Neill

Details

AGLC: R v O'Neill [2001] NSWCCA 193
Case: [2001] NSWCCA 193
Decision Date: 21 May 2001

CaseChat Overview and Summary

The case of R v O'Neill involved the defendant, O'Neill, who was arrested following a police entry into his private home without a warrant. The police claimed to have made a proper announcement of their intent to arrest before entering. O'Neill resisted the arrest, leading to charges of resisting arrest under the Crimes Act 1900. The court had to determine whether the police entry and subsequent arrest were lawful, particularly focusing on the adequacy of the announcement and the circumstances that led to the arrest.

The central legal issues revolved around the interpretation and application of section 33B of the Crimes Act 1900, which pertains to resisting arrest. The court had to decide whether the police's entry into O'Neill's home, without a warrant and without his permission, was justified and whether they had made a proper announcement of their intent to arrest. Additionally, the court needed to assess if the circumstances constituted an implicit expression of the intent to arrest, thereby rendering the entry lawful.

The court found that the police's actions were justified, despite the lack of a warrant, as they had a lawful reason to enter the premises without permission. The court concluded that the police made a proper announcement of their intent to arrest, and the circumstances surrounding the entry amounted to an implicit expression of intent. Therefore, the arrest was deemed lawful, and O'Neill's resistance to arrest was found to be a criminal offence. The appeal by the Crown was dismissed, and the conviction of the defendant was upheld.

No further orders were made by the court beyond the dismissal of the appeal and the affirmation of the conviction.

Orders