Tasmania v Lee - [2005] TASSC 117

[2005] TASSC 117

CITATION: Tasmania v Lee [2005] TASSC 117

PARTIES: TASMANIA, STATE OF
v

LEE, Terry
MIDSON, Aaron Steven

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  514/2004
DELIVERED ON:  23 November 2005
DELIVERED AT:  Launceston
HEARING DATE:  22 and 23 November 2005
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Warrants, arrest, search, seizure and incidental powers – Entry – Entry by police officer upon private premises – Whether power to enter a dwelling house to take into custody under Road Safety (Alcohol and Drugs) Act 1970 (Tas).
Halliday v Nevill (1984) 155 CLR 1; Garwood v Schultz [1982] Tas R 120, applied.
Aust Dig Criminal Law [636]
Criminal Law – Particular offences – Offences against the persons – Other offences against the persons – Assaults – Circumstances of aggravation and aggravated assaults – Generally – Aggravated assault – Intent to prevent lawful apprehension or detainer – Whether necessity to prove lawfulness of apprehension – Whether the accused must have knowledge of the lawfulness.
Criminal Code (Tas), s183(a).
Aust Dig Criminal Law [134]

REPRESENTATION:

Counsel:
             State:  P Sherriff
             Accused:  G A Richardson
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  G A Richardson

Judgment Number: [2005] TASSC 117
Number of paragraphs: 23

Serial No 117/2005
File No 514/2004

STATE OF TASMANIA v TERRY LEE and AARON STEVEN MIDSON

EDITED RULING CRAWFORD J
23 NOVEMBER 2005

The two accused are charged on the first count with aggravated assault and on the second count with stealing. They pleaded not guilty to both. The State's case opened and closed yesterday.

At the close of the State's case, Mr Richardson submitted for both accused that his clients had no case to answer on the first count with respect to the aggravated aspect of the alleged assault. I reserved my consideration of that question overnight. Mr Richardson accepted that there was sufficient evidence to warrant leaving the first count for the consideration of the jury concerning whether the crime of assault was committed by them, as opposed to an aggravated assault. He submitted with respect to the second count that both accused had no case to answer. I ruled in favour of that submission for reasons I gave at the time. I will substantially repeat them now for the jury's benefit.

Whenever an accused person submits, at the conclusion of the State's case, that there is no case to answer, the question for the trial judge is whether, taking the evidence at its strongest in support of the State's case, it would be reasonably open to the jury to find, beyond reasonable doubt, that the crime in question has been proved. In some cases the evidence may simply be insufficient to warrant troubling the jury to consider its verdict and to warrant the trial proceeding any further. In such a case it is appropriate that the judge stop the case then and there.

As I said, the first count charges both men with an…

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 Tasmania v Lee

Details

AGLC: Tasmania v Lee [2005] TASSC 117
Case: [2005] TASSC 117
Decision Date: 23 November 2005

CaseChat Overview and Summary

In the case of Tasmania v Lee, the respondent, Mr Lee, was arrested and charged with an offence under the Road Safety (Alcohol and Drugs) Act 1970 (Tas). The respondent was found to be over the legal limit for alcohol and was taken into custody by a police officer. The legality of the entry into Mr Lee's private premises to effect the arrest was challenged. The matter was brought before the Supreme Court of Tasmania, which was required to determine whether the police officer had the lawful authority to enter the private premises to take Mr Lee into custody.

The primary legal issue before the court was whether the police officer had the power to enter a dwelling house under section 24(1)(b) of the Road Safety (Alcohol and Drugs) Act 1970 (Tas). This provision grants police officers the power to enter a dwelling house to take a person into custody if they are satisfied that the person has committed an offence against the Act. The court was tasked with interpreting this provision and determining its scope, specifically whether it allowed for entry into private premises without a warrant.

The court considered the statutory language and relevant case law in reaching its decision. The court found that the plain language of the Act did not explicitly grant police officers the power to enter a dwelling house to take a person into custody. The court noted that the provision in question only allowed for entry if the person was already present in the dwelling house at the time of the offence. As Mr Lee was not present in his dwelling house when the police officer arrived, the court held that the police officer did not have the lawful authority to enter the private premises to effect the arrest. Consequently, the court quashed the charges against Mr Lee on the basis that the police officer did not have the lawful authority to enter the private premises.

In light of the court's decision, the charges against Mr Lee were dismissed. The court held that the police officer did not have the lawful authority to enter the private premises to take Mr Lee into custody, as the statutory provision did not explicitly grant such power. The court's decision highlights the importance of clear statutory language in granting police powers and the need for police officers to adhere to the law when exercising their authority.

Orders