Strano v Yates
[2016] ACTSC 363
•14 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Strano v Yates |
Citation: | [2016] ACTSC 363 |
Hearing Date: | 13 October 2016 |
DecisionDate: | 14 December 2016 |
Before: | Burns J |
Decision: | The appeal will be allowed and the conviction and penalty imposed by the Magistrate will be set aside. The charge will be remitted to the Magistrates Court for a new hearing. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – obstructing a public official – power to enter premises to arrest offender – claim of right – appeal allowed – remitted to Magistrates Court. |
Legislation Cited: | Crimes Act 1900 (ACT) s 220 Criminal Code 2002 (ACT) ss 38, 361 |
Cases Cited: | Halliday v Nevill [1984] HCA 80; 155 CLR 1 Hinchcliffe v Sheldon [1955] 3 All ER 406; 1 WLR 1207 Semayne’s Case (1604) 5 Co Rep 91a; 77 ER 194 |
Parties: | Sammy Strano (Appellant) Paul Ronald Yates (Respondent) |
Representation: | Counsel Mr J O’Keefe (Appellant) Mr K Lee (Respondent) |
| Solicitors John O’Keefe (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 26 of 2016 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Dingwall Date of Decision: 4 April 2016 Case Title: Yates v Strano Court File Number: CC15/6635 |
BURNS J:
On 4 April 2016, the appellant was found guilty by a Magistrate after a contested hearing of one offence of obstructing a public official in the exercise of his function as a public official of the Territory, contrary to s 361(1) of the Criminal Code 2002 (ACT) (the Criminal Code). On 11 April 2016, the Magistrate formally convicted the appellant and imposed a Good Behaviour Order for a period of 12 months. The appellant appealed from the conviction on the following grounds:
(i)The learned Magistrate erred in finding that police had reasonable grounds to believe that fugitive Steven Lockwook was inside the appellant’s apartment.
(ii)The learned Magistrate failed to direct himself about reliance on identification evidence as required by s. 116 of the Evidence Act 2011.
(iii)The learned Magistrate erred in finding that the actions of the appellant amounted to unlawful obstruction of police.
(iv)The learned Magistrate erred in finding that closing the door constituted obstruction.
(v)Alternatively, the appellant relies on claim of right to excuse his actions in obstructing police.
(vi)The learned Magistrate erred in finding that execution of the warrant after the 9 pm curfew was lawful in the circumstances.
(vii)The verdict of the learned Magistrate was unsafe and unsatisfactory.
At the hearing of the appeal on 13 October 2016 the appellant abandoned grounds (i) and (ii).
The offence of obstructing a public official is created by s 361 of the Criminal Code:
361 Obstructing territory public official
(1) A person commits an offence if—
(a) the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and
(b) the person knows that the public official is a public official; and
(c) the public official is a territory public official; and
(d) the functions are functions as a territory public official.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
...
The public official said to have been obstructed by the appellant was Senior Constable Paul Yates, a member of the Australian Federal Police. It was not disputed that when the relevant events occurred on 13 July 2015, Senior Constable Yates was a public official for the purposes of s 361(1) of the Criminal Code or that of the relevant time he was carrying out functions as a territory public official. There was also no dispute that the appellant, at the time of the relevant events knew that Senior Constable Yates was a public official.
The prosecution case was that on 13 July 2015 Senior Constable Yates and Constable Armstrong were looking for Steven Lockwood. They were aware that there was a first instance warrant in existence for the arrest of Mr Lockwood, and they proposed arresting him on the authority of that warrant. They had information that he may be located at Reid and so they went to that address. It was not disputed that the appellant was the lawful occupier at the residence of that address.
When police arrived at the appellant’s unit, they spoke to the appellant and asked whether Steven Lockwood was in the unit. The appellant told them he “didn’t know a Steven Lockwood”. Police then left the area.
About 10 minutes later Senior Constable Yates and Constable Armstrong returned to the appellant’s unit from a different direction. They said they saw Mr Lockwood standing in the kitchen of the appellant’s unit, before closing the window and pulling the curtains. Senior Constable Yates walked to the front door of the appellant’s unit while Constable Armstrong walked to the rear balcony of the unit where he saw Mr Lockwood come to the rear balcony. Mr Lockwood looked at Constable Armstrong, uttered an expletive, and then closed the balcony doors.
Senior Constable Yates knocked on the appellant’s front door, and asked the appellant to allow him to enter the unit for the purpose of arresting Mr Lockwood. The front door to the appellant’s unit consisted of a main wooden door, and an outer screen door. When Senior Constable Yates approached the unit on this second occasion the main wooden door was open, but the screen door was closed. Senior Constable Yates directed the appellant to open the screen door, but he did not comply. Senior Constable Yates then told the appellant that there was a first instance warrant in existence for the arrest of Mr Lockwood and directed the appellant to let him in. The appellant refused entry and asked to see a copy of the warrant. Senior Constable Yates told the appellant that warrants were kept at the watch house and that Mr Lockwood would be shown a copy of the warrant at the watch house.
The exact terms of that conversation between the appellant and Senior Constable Yates are important. Senior Constable Yates was given leave in the proceedings before the Magistrate to refresh his memory on the terms of the conversation from a Statement of Facts prepared shortly after the relevant events. He said that after he told the appellant there was a first instance warrant in existence for the arrest of Mr Lockwood, the following conversation occurred:
The defendant said, “Show me the warrant.” I said, “It’s a first instance warrant issued in the ACT, mate. We saw him in the window.” The defendant stated, “No, I’m not opening the door. There is no-one in here.” I said to the defendant, “He’ll be shown a copy of the warrant at the watch-house. Now, open the door.” I informed the defendant that he was obstructing police by not allowing access to his unit to apprehend Mr Lockwood.
The appellant was again directed to open the screen door, but he did not comply. Instead, he locked the screen door and closed the main wooden door. It was these actions on the part of the appellant that were alleged to constitute obstruction. Police were unable to obtain entry through the screen door as they did not have the required tools with them, although they could be obtained. After some minutes, the appellant opened the door and invited the police inside. By that time, Mr Lockwood was no longer in the unit, and Senior Constable Yates stated that one of the previously closed balcony doors was now open. Mr Lockwood was not located that night and was not arrested until some 10 days later.
The appellant did not give evidence in the proceedings before the Magistrate.
Before the Magistrate it was submitted by the appellant that:
(a)that there had been no obstruction as police did not have the right to require the appellant to open the screen door;
(b)the appellant’s act of closing the wooden door could not constitute obstruction because to obtain entry to the unit police needed to force entry through the screen door, and they did not have the tools to do so;
(c)the shutting of the wooden door was a lawful act which, as occupant of the unit, the appellant was entitled to perform; and
(d)any attempt by the police to enter the appellant’s unit utilising the power of entry granted by s 220 of the Crimes Act 1900 (Act) (the Crimes Act) was unlawful in the circumstances.
The prosecution did, in fact, rely upon the terms of s 220 of the Crimes Act as providing the police with the power to enter the appellant’s unit. The section provides:
220 Power to enter premises to arrest offender
(1) Subject to subsection (3), if—
(a) an officer has, under a warrant, power to arrest the person for an offence; and
(b) the officer believes on reasonable grounds that the person is on any premises; the police officer may enter the premises, using the force that is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(2) Subject to subsection (3), if—
(a) an officer has the power under section 212 to arrest the person without warrant for an offence; and
(b) the offence is a relevant offence; and
(c) the police officer believes on reasonable grounds that the person is on any premises; the police officer may enter the premises, using the force that is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(3) A police officer shall not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the executing officer believes on reasonable grounds that—
(a) it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so to prevent the concealment, loss or destruction of evidence relating to the offence.
(4) In this section:
dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, where people ordinarily sleep at night.
relevant offence means—
(a) a serious offence; or
(b) an offence against any of the following:
(i) section 380 (Possession of offensive weapons and disabling substances);
(ii) section 381 (Possession of offensive weapons and disabling substances with intent);
(iii) the Criminal Code, section 321 (Minor theft).
It was not in dispute that the offence in regard to which the first instance warrant concerning Mr Lockwood had been issued was a relevant offence for the purposes of s 220.
The Magistrate gave the following ex tempore reasons for finding the appellant guilty:
Yes. Well, in this matter the defendant has pleaded not guilty to the charge that he, in the Territory, on 13 July did obstruct a public official, namely, Paul Yates, in the exercise of his functions as a public official for the Territory, knowing that he was a public official. There is no issue at all that on that day Paul Yates was a public official.
There was some potential issue as to whether he was at the relevant time acting in his exercise of his function as a public official. That would arise if there was question about whether he was lawfully executing the warrant at the time in questions.
Having reviewed the matter over lunch and having received the evidence after lunch it is clear from the facts that the first approach was made at 10 past 9, that at that time there was no attempt to execute a warrant. It was simply an inquiry made as to whether Mr Lockwood was present at the premises. Police were told that he was not.
It was later that Mr Lockwood was seen. According to the police, the person who they believed to be Mr Lockwood was seen on a balcony and then entering back into the premises, but it was upon seeing that they had returned to the premises. That was of course, at about 9.20, after 9 pm. The exercise of the power in this case was under section 220 of the Crimes Act 1900, which provides that if an officer has under a warrant power to arrest a person for an offence, and there is no issue about that, and the officer believes on reasonable grounds that the person is on any premises, in my view there is abundant evidence and I am satisfied beyond any doubt the police held reasonable grounds for believing that Mr Lockwood was on the premises.
They have given evidence as to why they believed that, and particularly after having seen the male person described by them as Mr Lockwood within the premises, and they gave their reasons for being able to identify him, and it seemed to me that the material on which they relied provided them with reasonable grounds.
The police officer may enter the premises using the force that is necessary and reasonable in the circumstances at any time of the day or night for the purpose of searching the premises for the purpose of arresting the person. Subsection (3) says a police officer shall not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless it would not be practicable to arrest the person either at the dwelling house or elsewhere at another time.
In my view, accepting the evidence of the two police officers having been told that Mr Lockwood was not on the premises they left. They then saw him in the premises. That gave them, in my view, reason to believe that it would not be practicable to try and arrest him at any other time other than that present time, given the misleading information they had been given, the other information they had about his movements at the relevant times. In my view, it then was not practicable to arrest him at any other time than there and then in light of what had taken pace prior to that. In my view, subsection (3) did not preclude the execution of the warrant at 9.20, as was intended.
Upon returning to the premises the defendant was told of the existence of the warrant and the police wished to enter to execute the warrant. He was directed to open the door. In my view, he had left it at that he may not have been obstructing. In my view, there was no obligation on him to open the door upon a police direction, but instead of leaving things at that the evidence is, and it comes particularly from the second constable who gave evidence, he locked the screen door and he then shut the main door.
Constable Yates’ evidence was the screen door was shut. He was not specific as to whether it was locked or unlocked, but that the front door was then closed in his face. That, in my view, would have made it more difficult for the police to execute the warrant. Even if they had to get the necessary tools to get though the front door, the screen door, they would have still had to break down the main door, or break in through the main door. It being closed would have made their task more difficult, and that would then, in my view, operated as an obstruction.
Of course, the defendant has to obstruct with intention to obstruct. In all the circumstances and the evidence that I have heard it was largely unchallenged. I infer that he well knew that by closing that door he was giving the person inside an opportunity to escape, which appears fairly clear on the evidence that it did occur, and clearly from the whole interaction between him and the police there was an intention, in my view, to obstruct. I find the offence proved.
Grounds of appeal
Ground of appeal (iii): the learned Magistrate erred in finding that the actions of the appellant amounted to unlawful obstruction of police.
Ground of appeal (iv): the learned Magistrate erred in finding that closing the door constituted obstruction.
It is convenient to consider these grounds together. The Magistrate, the appellant submitted, made an error of law in finding that the shutting of the wooden door constituted obstruction of Senior Constable Yates after correctly determining that the appellant had no obligation to open the closed screen door when called upon to do so by police. The appellant submitted that he was entitled to bar the door to the police, citing Semayne’s Case (1604) 5 Co Rep 91a; 77 ER 194 (Semayne’s Case), Halliday v Nevill [1984] HCA 80; 155 CLR 1 (Halliday v Nevill) and Plenty v Dillon [1991] HCA 5; 171 CLR 635 (Plenty v Dillon).
Semayne’s Case involved an attempt by the plaintiff Semayne to recover goods belonging to a deceased debtor from premises occupied by the defendant, one Richard Gresham. The plaintiff sought the assistance of the sheriffs to recover the goods, who proposed to enter the house and recover the goods under authority of a writ obtained by the plaintiff for the recovery of the goods. The defendant objected to the proposed course. The Kings Bench enunciated a number of principles concerning the rights of property owners and the rights of those executing civil and criminal process at common law. The appellant cited Semayne’s Case as authority for the proposition that as the occupier of the unit, which was his dwelling, he was entitled to require the police to force entry, and he was not obliged to give them entry. Thus, the appellant submitted, the closing of the wooden door and locking of the screen door could not constitute an obstruction of the police, as they were acts the appellant was entitled to perform as the occupier of the dwelling.
In my opinion, the appellant’s reliance on Semayne’s Case is misguided. Semayne’s Case addressed the rights of occupiers and those executing process at common law. The Court was not there concerned with a statutory right of entry such as that provided by s 220 of the Crimes Act. More to the point, the Court in Semayne’s Case did not consider the respective rights of occupiers and those executing process in the context of a provision such as s 361 of the Criminal Code.
The appellant’s submission is to the effect that he is entitled to obstruct police in entering his home because it is his home. This cannot be correct. The terms of s 220 of the Crimes Act specifically empower police to enter premises, including residential premises, in order to search for a person the subject of an arrest warrant, in accordance with the terms of the section. It is not to be supposed that any common law right to bar entry, based upon the occupant’s proprietary rights in the premises, can act as a defence to a charge of obstructing a public official in the exercise of a right of entry specifically authorised by statute.
It may well be, as the Magistrate found, that the power of entry afforded to police by s 220 does not cast upon the occupiers of premises a corresponding duty to open the premises to police, but the allegation of obstruction made by the prosecution against the appellant was not his failure to open the screen door when called upon to do so by police; the allegation of obstruction was that the appellant intentionally made the exercise of their functions (being entry into the premises and the arrest of Mr Lockwood) more difficult by the positive acts of locking the screen door and closing the front door.
The appellant submitted that the offence created by s 361 of the Criminal Code should effectively be read down such that it would not apply to positive actions of intentional obstruction undertaken by occupants of dwelling houses calculated to obstruct the lawful entry into those premises by police in the authorised pursuit of a criminal or those alleged to have committed crimes. When expressed in this way, it is not an attractive proposition. There is no warrant for reading such a restriction into the clear, general words of s 361.
The appellant’s reference to the decision of the High Court in Halliday v Nevill is also misguided. That case concerned the right of police to enter upon private property without warrant in order to effect the arrest of a criminal. The issue in Halliday v Nevill only arose because of the absence in Victoria at that time of a statutory power of entry onto private property such as that found in s 220 of the Crimes Act. Similarly, the issue in Plenty v Dillon was whether a police officer had committed a trespass by entering onto private property in order to serve a summons in circumstances where there was no statutory right of entry given to him. All of these cases are clearly distinguishable.
Goddard LCJ said in Hinchcliffe v Sheldon [1955] 3 All ER 406; 1 WLR 1207, that “obstructing”, in the context of obstructing a police officer in the execution of their duty, means “making it more difficult for the police to carry out their duties”. Applying this definition to the terms of s 361 of the Criminal Code, a person obstructs a public official in the exercise of their functions as a public official if they do something which makes it more difficult for the public official to carry out their functions.
In the present case the Magistrate was well entitled to conclude that the locking of the screen door and closing of the wooden door were acts intended by the appellant to obstruct the police, and did obstruct them in the sense that it made it more difficult for them to carry out their functions. Even if the screen door had been already locked, and all the appellant did was to close the wooden door, this would have been sufficient to establish the offence. There was unchallenged evidence that while the police on the scene did not have the equipment to force entry through the screen door, they could obtain such equipment. Without the appellant having closed the wooden door, once police obtained the equipment and forced entry through the screen door they would have obtained immediate access to the appellant’s unit. By closing the wooden door the appellant made the exercise of the functions of the police more difficult, in that having forced entry through the screen door they would have been obliged to gain entry through the wooden door. The locking of the screen door was an act obviously making it more difficult for the police to exercise their functions.
These grounds of appeal fail.
Ground of appeal (v): alternatively, the appellant relies on claim of right to excuse his action in obstructing police.
The evidence given by Senior Constable Yates of the discussions between himself and the appellant is equivocal. The demand made by the appellant to see the warrant for the arrest of Mr Lockwood may not have been a demand based upon the assertion of a proprietary right by the appellant, but may simply have reflected scepticism on his part that such a warrant existed.
The evidence of Constable Armstrong about the conversation between Senior Constable Yates and the appellant at the front door of the appellant’s unit on the second occasion that the police attended was slightly different. He said:
I then observed a conversation between Constable Yates and the defendant, where he has asked to enter the unit, saying “Steven Lockwood’s in the unit. He has a first warrant. You need to let us in”. The defendant locked the screen door, refused us entry to the premises. He then notified him he has a first instance warrant. The defendant told us we needed a search warrant to enter the unit.
The assertion by the appellant, as reported by Constable Armstrong, that police required a search warrant to enter the unit is capable of being interpreted as an assertion of a proprietary right by the appellant to refuse the police access to his unit unless they held a search warrant.
In this appeal, the appellant referred me to s 38(2) of the Criminal Code. It is appropriate to set out s 38 in full:
38 Claim of right
(1) A person is not criminally responsible for an offence that has a physical element relating to property if—
(a) when carrying out the conduct required for the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b) the existence of the right would negate a fault element for any physical element of the offence.
(2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.
(3) This section does not negate criminal responsibility for an offence relating to the use of force against a person.
The question whether the appellant was not criminally liable for the offence of obstructing a public official by virtue of s 38(2) of the Criminal Code was not raised before the Magistrate. As such, the Magistrate did not make necessary findings of fact with regard to the “defence” of claim of right, I did not see or hear the witnesses give evidence, and I am unwilling to make findings of fact based on the transcript on a matter which turns significantly on credibility. If the exemption from criminal responsibility provided by s 38(2) of the Criminal Code can apply to an offence under s 361 of the Criminal Code, the appropriate course will be to allow the appeal, but remit the matter back to the Magistrates Court for a new hearing. If the exemption could not apply to such an offence, then of course this ground of appeal must fail.
The respondent submitted that the exemption provided by s 38(2) cannot apply because “the offence of obstructing police in 361(1) of the Criminal Code 2002 does not contain a physical element relating to property.” This submission was clearly based on the erroneous assumption that the appellant was relying on s 38(1) of the Criminal Code.
The exemption referred to in s 38(2) does not require that the offence charged has a physical element relating to property. The question is, whether the alleged offence under s 361(1) arose “necessarily out of the exercise of a proprietary or possessory right” that the appellant mistakenly believed to exist. In my opinion it did, assuming of course that the appellant held a genuine belief that he was, by virtue of his rights as occupier of the unit, entitled to deny police entry to the unit unless they held a search warrant.
Proof that police had a right of entry to the appellant’s unit was central to the prosecution case. If the appellant held a genuine belief that by reason of his rights as occupier of the unit he was entitled to deny the police access to the unit unless they had a search warrant, such a belief would be inconsistent with a finding that the appellant intentionally obstructed the police in the execution of their functions.
I acknowledge that there was cogent evidence upon which it may be found that the appellant did not lock the screen door and close the wooden door because he was asserting some form of proprietary right. The evidence that the appellant voluntarily allowed police to enter the unit after Mr Lockwood had made his escape points towards the appellant acting as he did, not in the purported exercise of a proprietary right, but in order to delay the entry of police to the unit so as to give Mr Lockwood an opportunity to escape. As I have said, however, I will not make findings of fact on this issue without having seen or heard the witnesses give evidence. While I propose upholding the appeal on this ground, it is nevertheless appropriate to consider the remaining grounds of appeal raised by the appellant.
Ground of appeal (vi): the learned Magistrate erred in finding the execution of the warrant after the 9 pm curfew was lawful in the circumstances.
The Magistrate found that the initial approach by police to the appellant’s unit was at 9.10 pm. This was within the period when access to dwelling houses to execute a warrant was restricted by the terms of s 220(3) of the Crimes Act: see [13] above. The Magistrate found that the initial attendance by the police at the front door of the appellant’s unit was not an entry to his premises for the purposes of executing the first instance warrant. The Magistrate described it as simply an inquiry by police whether Mr Lockwood was present at the unit. This is obviously correct.
The police did rely upon the power of entry provided by s 220 when they demanded entry to the appellant’s unit on the second occasion that they attended. The Magistrate found that the conditions for the exercise of the power of entry to a dwelling between the hours of 9.00 pm and 6.00 am as set out in s 220(3) were made out. In my opinion he was right to do so.
There was evidence before the Magistrate that police were aware that Mr Lockwood had failed to reside at Samaritan House as required by his bail and was transient with no fixed place of abode. The actions of Mr Lockwood when he saw police outside the appellant’s unit speak of a desire on his part to avoid apprehension by police. There was ample evidence upon which the Magistrate could be satisfied of the matters set out in s 220(3) of the Crimes Act.
This ground of appeal fails.
Ground of appeal (vii): the verdict of the learned Magistrate was unsafe or unsatisfactory.
The appellant did not address this ground separately, relying on those matters raised in the other grounds of appeal as establishing that the verdict was unsafe or unsatisfactory.
Leaving aside the question of claim of right under s 38 of the Criminal Code, the Magistrate was well entitled to make the findings of facts that he did and to find the charge proven. The case against the appellant was, in fact, a strong one. The verdict was not unsafe or unsatisfactory
Orders
The appeal will be allowed and the conviction and penalty imposed by the Magistrate will be set aside. The charge will be remitted to the Magistrates Court for a new hearing.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 14 December 2016 |
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