Staskos v Johnson

[2016] HCATrans 25

[2016] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P25 of 2015

B e t w e e n -

DANIEL BROOK STASKOS

Applicant

and

DAVID COLIN JOHNSON

Respondent

Application for special leave to appeal

FRENCH CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 12 FEBRUARY 2016, AT 2.58 PM

Copyright in the High Court of Australia

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friend, MR A.G. ELLIOTT, for the applicant.  (instructed by Shadgett Legal)

MR J. McGRATH, SC:   May it please the Court, I appear with my learned friend, MS A.C. LONGDEN, for the respondent.  (instructed by Director of Public Prosecutions (WA))

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, could I take you straight to page 104 of the application book?  I will try and start in the middle of things, bearing in mind the conceded operation of the Criminal Investigation Act and, in particular, the effect of section 138 that you find in our written submissions.  So, we are going to go straight to the Criminal Code as amended in 2006, section 231.

Conveniently, that which it could be obviously regarded as replacing the now repealed section 232 appears on the same page of the application book but, I stress, this is an argument that is based upon 231 as it appears, before I get to anything like Potter v Minahan or the liberty of people to resist unexplained arrest.

Just looking at 231; one sees in relation to the cause of arrest – to use the expression in paragraph 231(2)(b) – there is an inquiry posited as a result of which there will be a determination ‑ to use the language of the chapeau of subsection (2), whether any arrest might have been made in less forcible manner, obviously, than it was.  Now, that is a determination which is to be made with a mandatory consideration, quote “shall be taken into account” set out in paragraph (b), namely:

if it was practicable to do so at the time, whether the person making an arrest . . . gave notice . . . of the cause of the arrest.

There is the language “at the time” and the present participle form “making”, to be compared with the language to which the Court of Appeal made entirely appropriate reference of section 138 of the Criminal Investigation Act that you find at page 105 of the application book – and I do not need to dwell on it – the words “has been arrested” in paragraph 138(2)(a) and the phrase “after the arrest” to be found in subsection (3) of section 138, albeit in relation to the officer in charge of the investigation as opposed to the person making an arrest.

Now, our submission is simply this ‑ and it does not depend on, though it is entirely concordant with, the fact that section 7 of the Criminal Investigation Act is focused on the provisions of that Act, not of the Criminal Code Act ‑ it is this, that we know that the power of arrest is to be found in the Criminal Investigation Act in section 128 which, not so conveniently, you will find in the application book set out at page 74 in Justice Mazza’s reasons.  There is the power to arrest and that is the kind of provision to which section 7 of the Criminal Investigation Act can, indeed, speak, but it speaks by stipulating the outcome of an inconsistency with the common law which is, as it were, referred to as a body of doctrine in section 7(1).

Leaving aside the curiosity of a statute saying that an officer has common law powers, the evident intent is clear from the final terms of section 7(3), but section 128, our point is, does not say anything about the manner of arrest. In particular, it does not say anything about the application of force. We find that in section 231 of the Criminal Code to which I have already referred which, for a long time, has had in subsection (1) a formulation imperceptibly different, if at all, from the common law, namely:

to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.

Those are words, long used in the statute, which must be understood in light of the proposition that at common law it is not unlawful to resist an unlawful arrest, that at common law there is not a duty sanctioned either by crime or by some civil consequence to be passive in the face of any purported application of, I will call it, “official force”.  You could not make any sense of the common law of arrest were it otherwise.

So, in considering the operation of all of these provisions one comes back to where I have started, section 231(2) posits this judicial determination whether an arrest might have been made in a less forcible manner. The evident purpose for that is to ascertain whether more than the force authorised by section 231(1) was exerted. If it was exerted, more than section 231(1) authorises, then the arrest would not be authorised by law; it would be contrary to a limit imposed by statute, as it happens, a limit that is entirely congruent with pre‑existing common law.

Then one sees that a mandatory consideration is, did you, the arresting officer, give notice at the time of making the arrest, not after, not as soon as practicable after, but at the time of making the arrest, did you give notice of the cause.  Now, how, one asks, can that question, did you give notice if it was practicable to do so, how can that possibly affect the question of whether the force you used to overcome any resistance was only that which was reasonably necessary.  The answer is obvious.  The Parliament has proceeded, as the common law has long recognised, and where it still obtains, still recognises, that resistance to unlawful arrest is not itself unlawful.  It is a proper allocation of authorisation or liberty to use power to permit a person to resist forcibly, physically, a policeman who lays hands upon the person unless ‑ ‑ ‑

FRENCH CJ:   You have identified – sorry to interrupt.

MR WALKER:   Unless that be by way of lawful arrest and the lawfulness of the arrest has, as a limit, that no more force may be exerted than is reasonably necessary to overcome any force used in resisting.  So, it means that the question whether notice of cause was given at the time of making the arrest is regarded by Parliament as going to the heart of the question, could this have been done less forcibly?

In many cases, the answer will be, had you but told the person why you were laying hands on them, indeed, that you are resting for this cause, the resistance would not have been justified and your commensurate answer, or response, or retaliation to that resistance is, of course, therefore, reasonably necessary.  But the Parliament has said that it will not be reasonably necessary to overcome force used in resisting if the force used in resisting can be seen as attributable to your failure to give any notice of cause of arrest.

FRENCH CJ:   I am sorry.  I just want to make sure.  Is the point you are putting, as the point of general importance that which is encapsulated, or set out, at the end of 4.1 of the written submission – 101?

MR WALKER:   Yes.

FRENCH CJ:   The question is:

whether there is any requirement to state the reason for an arrest when a police officer intervenes in an unlawful arrest, but has a separate reason to effect a lawful arrest.

MR WALKER:   That is right.  That is the occasion in which this arises.  There had to be a course of ‑ ‑ ‑

GORDON J:   Just before you leave that – sorry to interrupt, and then I will be quiet ‑ is not your problem, though, that that is contrary to the findings of the courts below?

MR WALKER:   No, not at all.

GORDON J:   Especially at 55.  That is, it was not as a result of interfering in or assisting in an unlawful arrest but it was her separate arrest for a disorderly conduct?

MR WALKER:   No, and that is what I am trying to come to.

GORDON J:   I see; I apologise.

MR WALKER:   First of all, your Honours appreciate that whether that was an available analysis as a matter of fairness is our second point.  Can I move off that – leave that alone at the moment?  Maybe I will have to rest on our written submissions on that point.

The second so‑called arrest followed, on any view of the matter, the first purported, that is, unlawful arrest, Pracy.  It immediately raises the question, what is this idea of successive arrests?  But keeping that idea still in the air ‑ not least because we know that circumstances can change so as to render lawful that which had previously been unlawful ‑ focusing on the facts in this case, there is what I am going to call – perhaps euphemistically – a tussle involving, certainly, Pracy, Robinson and our client.

It is now said that unannounced ‑ and that is the key, unannounced there was a lawful application of force by Robinson for the purpose of effecting, that is, overcoming resistance to, an arrest for disorderly conduct, unannounced arrest for disorderly conduct, an uncommunicated state of mind of Constable Robinson.

That is why 231(2) and what I will call the common law to which it is obviously a legislative response, not by way of contradiction but by way of adaptation, is so critical because she did not say “I am now arresting you for disorderly conduct”.  Without any break in the tussle, nothing observable in what might be called choreographed fashion, resistance which was lawful by my client to an unlawful arrest by Pracy – that is why she succeeded on the first charge – continued as force was exerted by an officer who, according to the prosecution’s own particulars, at least at one stage apparently was proceeding on the basis that she was there to assist Pracy and her assistance of Sutton, et cetera. 

Now, in our submission, that is precisely the kind of case where a failure to give notice of the cause of arrest naturally goes to the lawfulness of the arrest which was the discharge of official function necessary for the conviction which my client has suffered.  Our submission is that, although the matters were not put in the statutory terms that we now embrace, everything factually and as a matter of legal argument concerning the relation between the force available to a person being arrested to resist, the potential lawfulness of that, and the potential unlawfulness of excessive force used in response, all of that has been thoroughly canvassed and the case is an ideal vehicle to explore what is otherwise of obvious great general importance.  Can it be that an ‑ ‑ ‑

GORDON J:   I know you say it is an appropriate vehicle but what I do not understand, Mr Walker, is how is it it can be in circumstances where you have got the magistrate’s reasons at application book 16 and 17 which seem to make findings picked up by the Court of Appeal at paragraph 30 that, in effect, she was arrested lawfully, she was given notice.  Yes, she was pushed to the ground but she continued to resist arrest after she was notified.

MR WALKER:   No, your Honour, there is no finding here that she was given notice at the time of being arrested for disorderly conduct.

GORDON J:   It says the accused – this is the magistrate says at page 16 at around line 40, two various versions of the evidence are given, and then, as I understood it, from then on makes a finding that ‑ ‑ ‑

MR WALKER:   I do not think that the finding at line 48 and following has anything to do with what was told by Robinson.

GORDON J:   I see.

MR WALKER:   There is no finding by the magistrate to that effect and there is certainly no reflection of that either before Justice Le Miere or the Court of Appeal; none at all.  It is accepted I think that there was no notice of the cause of arrest at the time of making the arrest if the cause be what we say is the revisionist approach – it should not have been permitted – of it being a subsequent arrest after an unlawful arrest and this subsequent arrest being for disorderly conduct.

GORDON J:   Well, I have two points.  One is it seems as though the magistrate does not say it follows an unlawful arrest, and the passage I was having regard to is on page 17 at lines 20 to 28 where ‑ ‑ ‑

MR WALKER:   “It would have been desirable”.

GORDON J:   He goes on to say:

the accused was aware, effectively, that Robinson was in the process of apprehending her.

MR WALKER:   Well, that is not the same as being given notice of the cause of arrest.

GORDON J:   So is that the complaint?

MR WALKER:   Yes, very much so.  Robinson was described by the prosecution, as you have seen in our second point, as being in course of her official functions in assisting Pracy and others in relation to their suppression of the struggles of my client.  My client’s struggles were lawful.  Their attempted suppression of them were unlawful, and so the magistrate found.  That is the unlawful arrest to which I refer.  There was a finding of unlawful arrest.  Sutton’s arrest of Gourlay was unlawful and the extension of that to the first purported arrest by Pracy of my client was unlawful.  My client’s resistance was lawful.

Now, my client’s lawful resistance is said by the reasoning against us to have morphed into unlawful resistance, or at least no longer to have been a relevant question for the degree of force used by Robinson, whereby the basal requirement of the offence for which he has been sentenced, mandatory to six months’ imprisonment, is this, that an unannounced cause of arrest – disorderly conduct – turned what was lawful resistance by my client into conduct unlawful and criminal because it was obstructing Constable Robinson in carrying out what has to be, and could only be, the lawful arrest for disorderly conduct.  That is why we say 231(2), however, says this unannounced, entirely after the event disclosed, arrest for disorderly conduct has itself – we know that it is not invalid because there was no prior notice of cause.  The common law does not apply.  We accept that.

But we do know that under 231(2) it may be invalidated because the failure to give the notice at the time of the arrest means that your application of force to overcome resistance was not reasonable.  You are responsible for that because you did not say “Listen, I am arresting you for disorderly conduct”.  It is for those reasons, in our submission, that the magistrate’s findings are not findings that present difficulties to us at all.  They underline the critical importance of ensuring that there is proper attention paid to the existing lawful resistance by my client as the necessary context in which the application of force by Constable Robinson falls to be gauged as to whether “it could have been done in a less forcible manner”, obviously for the purposes of determining lawfulness of her subsequent arrest and that being, as I say, a necessary basis of the offence for which we were convicted.

I see the time.  In relation to the unfairness point, in our written submissions we have set out the sequence.  It is absolutely not to the point that Mr Elliott cross‑examined, with considerable effect, in relation to that which was the prosecution’s theory of the case.  It does not avail, and nor is it accredited to the prosecution then to have said “Your particulars are unnecessary”.  They are very necessary when one is considering the legality of the exertion of official force against a person, and what follows from

that, the lawfulness of physical resistance to a purported exertion of official force.  The reasonable question was asked – what were the official duties that Constable Robinson was obstructed in to underline that offence – and the answer was not arrest for disorderly conduct, it was assistance to that which was itself unlawful exertion of violence against my client.

That is why, in our submission, the two points travel together.  They do inform each other.  The first, of course, is a statutory point which would exist regardless of the second.  The justice of the individual case particularly informs the second point, particularly bearing in mind the extremely drastic nature of the consequence for my client.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr McGrath.

MR McGRATH:   May it please the Court.  It is accepted that in carrying out an arrest, officers may use force that is reasonably necessary in the circumstances to exercise a power to arrest and overcome any resistance offered, and we do accept that excessive force is unlawful.

My learned friend has taken the Court to the interaction of the relevant section, 128 of the Criminal Investigation Act and section 231(2) of the Criminal Code.  The interaction of those two provisions was considered by the court below.  If I could take your Honours to the reasons for decision of her Honour the President at application book 53, paragraph 16.  The first submission I make is, as developing what her Honour the President says, that:

the scope of s 128 of the CIA [sets out the] obligation in s 138(2)(a) and s 138(3) [and they] are intended to cover the field on the timing and content of the information to be provided relating to arrest.

Her Honour considered 231(2) of the Criminal Code, application book 51 at paragraph 10 of her reasons for decision, and her Honour sets out 231 at application book 51 and her Honour determines that:

Section 231(2)(b) of the Code is positively inconsistent with the continuing application of the common law rule insofar as failure to comply with the rule renders the arrest unlawful. The provision clearly contemplates that an arrest is lawful notwithstanding a failure to inform the person at the time of the arrest of the cause (ie reason) for the arrest.

His Honour Justice Mazza made similar findings at application book page 73; if I could take your Honours there. His Honour Justice Mazza conveniently sets out in his reasons for judgment section 231, if I could take your Honours to paragraph 111 of his Honour’s reasons for decision where his Honour says:

The clear implication of this provision is that failure to give notice does not make the arrest unlawful. Thus s 231(2)(b) is inconsistent with the existence of the requirement in this State.

The court below found that the common law requirement had no application, given the Code provisions in the Criminal Investigation Act but, tellingly, the court below said that even if they were wrong in their determination that the Criminal Investigation Act created a code and the common law applied, in the circumstances of this case, given the conduct of the applicant and the surrounding circumstances, the reasonable exceptions to the common law rule would have applied, that is, it was not practicable for Senior Constable Robinson to give notice.

So, your Honour, we are left with this in respect to my learned friend’s submissions, and that is the lawfulness of the arrest by Senior Constable Robinson.  Your Honour Justice Gordon has already taken my learned friend to the reasons for decision of the learned magistrate and once again those particular findings are very telling.  They are also conveniently summarised in the Court of Appeal by Justice Mazza, if I could take your Honours to that, application book page 59.  The first significant finding is at paragraph 48 where the finding is – it is a recital of the magistrate’s finding:

The respondent did not apparently see what Constables Manfroni and Sutton did to Mr Gourlay. 

This is not a case where, having seen an unlawful arrest of another, there was the determination to intervene.  One then goes to the separate and distinct arrest, and that was the finding which has not been impeached of the magistrate and was found correct in the court below.  There was a separate and distinct arrest by Senior Constable Robinson. 

The decision to undertake that arrest occurred prior – different location further up Henderson Street and not at the time the other arrest was taking place.  So a decision for an arrest was made.  That decision was in respect to the separate offence of disorderly conduct and the finding was that Robinson executed that arrest.  If I take your Honours to the application book, final paragraph on 59, where Justice Mazza says:

Although Senior Constable Robinson did not use words to the effect of ‘you’re under arrest for disorderly conduct’, she did tell the respondent to stop resisting.  Once the [applicant] was restrained on the ground –

which was only a matter of seconds; she was told immediately that “she was under arrest for the offence of disorderly conduct”.  That, in itself, affirms the evidence of Robinson as to the purpose of that arrest.  Robinson’s further evidence is summarised in the application book at 64 by his Honour Justice Mazza.  The final point on those facts was this, and this is at paragraph 75 of the application book 64 in the middle of that paragraph:

The learned magistrate found that Senior Constable Robinson acted upon that intention and accordingly arrested the respondent.  She did not see how Gourlay was dealt with by Constables Manfroni and Sutton, nor did she act intending to assist Constable Pracy in the arrest of the respondent for obstruction. 

So this is neither the applicant nor Senior Constable Robinson saw the unlawful conduct of the other two officers.  Rather, this separate and distinct execution of the arrest was undertaken.  The final finding is this, that the force used by Senior Constable Robinson was not excessive in order to execute her distinct arrest.  So, the facts simply do not support the applicant’s contention on the special leave.  Nor, with respect, does my learned friend’s construction or interpretation of the proper construction of 231(2) and the Criminal Investigation Act withstand the scrutiny given that both sections were considered by the court below.  In short, your Honours, this is not an appropriate vehicle for special leave because there is no reasonable prospect of success.  May it please the Court.

FRENCH CJ:   Thank you, Mr McGrath.  Yes, Mr Walker.

MR WALKER:   Your Honours, that which is noted by Justice Mazza at application book 59 to 60 in his paragraph 51 involves things being said to my client “stop resisting” apparently repeatedly and soon afterwards – very soon afterwards, being given notice of cause of arrest, namely, for disorderly conduct.  There is no finding either before the magistrate or by way of permissible appellate understanding of the primary evidence thereafter that attributes any impracticability from what was actually passing physically between the people where it is the police case that they were able to tell her to stop resisting.  That is the first point.

The second point is that the Court of Appeal simply does not deal with the fact that 231 is premised on an arrest becoming unlawful by the use of excessive force upon determination that it could have been effected less forcibly, having considered the mandatory matter of whether or not, if it was practicable to do so, there had been notice given of the cause of arrest at the time of the arrest taking place.  That, in our submission, is a matter of very considerable general importance, it being, in our submission, of fundamental matter in relation to liberty that there be clarity as to what may

occur when somebody who has apparently formed an intention to arrest but does not give notice of that cause forms that intention during a pre‑existing tussle which was up to that point entirely lawful resistance on the part of the person later arrested.

Parliament has, in our submission, given a very clear indication that because the reasonable force which is authorised has to be calibrated to, among other things, resistance, the question of notice at that time of cause of arrest is germane to the reasonableness of that which answers the resistance, and there is no consideration of that matter at all in the Court of Appeal who were thereby in error in upholding an appeal from Justice Le Miere.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.

The Court is of the view that there are insufficient prospects of success in this case to warrant the grant of special leave.  Special leave will be refused.

The Court now adjourns to 2.00 pm on Tuesday, 1 March in Hobart.

AT 3.31 PM THE MATTER WAS CONCLUDED