Tipping v The King

Case [2023] SASCA 8

Supreme Court of South Australia

(Court of Appeal: Criminal)

TIPPING v THE KING

[2023] SASCA 8

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

23 February 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - WARRANTS FOR ARREST AND DETENTION - EXECUTION

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - EFFECTING ARREST - INFORMING PERSON ARRESTED OF FACT AND REASON

Following a trial by jury, the appellant was found guilty and convicted of the offences of assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Count 1) and aggravated threatening to cause harm, contrary to s 19(2) of the CLCA (Count 2). The offences were aggravated by reason of having been committed against a police officer, who the appellant knew to be a police officer acting in the course of his duties at the time of the offending.

On the prosecution case, the complainant (a police officer) attended upon an apparently abandoned vehicle. A subsequent registration and Police Information Management System (‘PIMS’) check confirmed that the vehicle belonged to the appellant and that there was an active warrant for his arrest. The complainant attended the appellant’s home and inquired about the vehicle. After conducting a further warrant check, which confirmed his earlier information, the complainant told the appellant that there was an active warrant, and that he was under arrest for that warrant. A violent altercation then took place during which the appellant committed the offences. By contrast, the appellant’s evidence was that he asked the complainant the reason for his arrest but was given no answer, that the complainant initiated the violent altercation, and that he did not act violently towards the complainant. 

At the close of the prosecution case, the appellant submitted there was no case to answer with respect to the aggravating circumstances as it was a pre-requisite for a lawful arrest that the complainant inform the appellant of the reason underlying the warrant. The trial Judge rejected that submission and found that there was a case to answer.

The appellant seeks an extension of time to lodge the appeal, the notice for which was filed approximately eight months after the expiration of the 21-day limitation period.

The appellant now appeals against the conviction on the following grounds:

1.The trial Judge erred in directing the jury that ‘it is sufficient for a lawful arrest in South Australia that the arresting officer tells the person that they are being arrested on an active warrant because the warrant is the reason for the arrest’ (Ground 1).

2.The trial Judge erred in rejecting the submission that there was no…

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Tipping v The King [2023] SASCA 8
Case
[2023] SASCA 8
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Livesey P, Bleby and David JJ, considered an appeal by the appellant against his conviction for two offences. The dispute arose from an arrest made by a police officer, Jelfs, who attended the appellant's residence to investigate an abandoned vehicle. During the interaction, Jelfs discovered an active arrest warrant for the appellant and proceeded to arrest him, which subsequently led to a physical altercation. The appellant was found guilty of both counts at trial.

The primary legal issues before the Court concerned the lawfulness of the arrest and the adequacy of the information provided to the appellant at the time of his arrest. Specifically, the Court had to determine whether the trial judge erred in directing the jury that it was sufficient for the arresting officer to inform the appellant he was being arrested on an active warrant, without further explanation of the underlying reasons for the warrant. Additionally, the Court considered whether the trial judge was correct in rejecting the appellant's submission that there was no case to answer, and whether the arrest complied with the requirements for a lawful arrest, particularly in light of the decision in *Christie*.

The Court reasoned that for an arrest to be lawful, the arresting officer must inform the person arrested of the fact of the arrest and the reason for it. While the officer is not required to provide the precise legal grounds, they must provide sufficient information to enable the person to understand why they are being arrested. The Court found that simply stating there was an "active warrant" was insufficient to inform the appellant of the reason for his arrest, as it did not convey the nature of the offence or the circumstances leading to the warrant's issue. This lack of sufficient information rendered the arrest unlawful.

Consequently, the Court allowed the appeal, quashed the convictions, and ordered that the appellant be acquitted of the charges. The Court determined that the evidence obtained as a result of the unlawful arrest was inadmissible, and without this evidence, there was no case to answer.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The trial Judge found that there was a case to answer. The appellant was found guilty of both counts. Approximately eight months after the guilty verdict, a notice of appeal was filed on behalf of the appellant. Evidence at trial On 8 July 2015, Jelfs was conducting traffic patrol duties when he was required to attend upon an apparently abandoned vehicle. He was wearing his police uniform but driving an unmarked car. A registration check of the abandoned vehicle indicated that it belonged to the appellant. The check also disclosed the appellant’s residential address. Prior to attending the address, Jelfs conducted a check on the appellant using the Police Information Management System (‘PIMS’) and was informed that the appellant had an active arrest warrant. When Jelfs attended at the appellant’s residence to inquire about the vehicle, he knocked on the front door, which was eventually answered by the appellant. Jelfs asked him for proof of identification. The appellant produced his driver’s licence. Jelfs then contacted police communications to conduct a warrant check on the appellant’s name. In doing so, he turned down the volume of his police radio, so the appellant could not hear his conversation. Through that communication it was confirmed that there was an active warrant for the appellant’s apprehension, which specified that it was a ‘no bail warrant’. There was no dispute at trial that the appellant was on bail for an unrelated matter, and it was a condition of his bail agreement that he report each Tuesday to the Holden Hill Police Station. That bail agreement also required the appellant to attend at the Holden Hill Magistrates Court on 7 July 2015 at 10:00am in answer to a summons. The warrant was issued by a Justice of the Peace at the Holden Hill Magistrates Court on 7 July 2015 for the appellant’s failure to appear at Court. Jelfs gave evidence that at the time of executing the warrant he did not know of the reason underlying its issue. Jelfs gave evidence that he informed the appellant that there was an active warrant and that he was under arrest for that warrant. Jelfs said that the appellant responded by saying that he ‘didn’t want to go to gaol’ and that he had ‘just failed to sign in’ the day before. As mentioned above, that was not the underlying reason for the warrant. Then, a violent altercation ensued between Jelfs and the appellant. There was, however, a marked difference between the accounts given by Jelfs on the one hand, and the appellant on the other, as to what transpired during that physical altercation. Jelfs gave evidence that when he attempted to handcuff the appellant, he grabbed hold of Jelfs’ vest and a physical struggle followed. Jelfs said that he then dropped the handcuffs and kicked them off the porch to stop the appellant from using them as a weapon. He said the appellant punched Jelfs in the right side of his face, knocking his glasses off. The struggle continued and the appellant punched Jelfs again. It was around this point in the altercation that Jelfs engaged the emergency button on top of his radio.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

His Honour went on: As you will see from the aide-memoire, the aggravating circumstances, which the prosecution must prove beyond reasonable doubt for count 2, are the same as for count 1, and I have explained those to you a short while ago. If you are not satisfied beyond reasonable doubt of all of the circumstances of aggravation, then you have to acquit him of aggravated threatening to cause harm, but if you are satisfied nonetheless of elements 1-3 beyond reasonable doubt, you would return a verdict of guilty of threatening to cause harm.Consideration The appellant complains by Ground 1 that the trial Judge was in error in directing the jury that it was sufficient for Jelfs to inform him that he was being arrested on an active warrant without further explanation as to the reason underlying the warrant. As to Ground 2, the appellant’s complaint has two limbs. First, the trial Judge erred in rejecting the appellant’s submission that there was no case to answer on the basis that the decision in Christie could be distinguished on its facts as relating to an arrest without a warrant. Second, the trial Judge erred in finding that for a lawful arrest to comply with the requirements of Christie, all that was required of Jelfs was that he inform the appellant he was being arrested on an active warrant. The correctness of the applicant’s contention on Ground 2 will be largely determinative of whether the legal directions the subject of Ground 1 were erroneous. For that reason, it is convenient to deal first with Ground 2. As mentioned earlier, the appellant also sought an extension of time to lodge his appeal. That application was opposed by the respondent.Extension of time In considering whether to grant an extension of time this Court will usually consider the following matters: the length of the delay; the reasons for the delay; the impact upon the public interest of reopening the verdict after the lapse of time; and the merits of the proposed grounds upon which the application has been made.[5] [5] R v Parenzee (2008) 101 SASR 469 at 482 per Doyle CJ. A notice of appeal must be filed within 21 days of the date of a conviction, sentence, order, or decision which is the subject of the appeal.[6] The appellant was convicted on 11 October 2021. The notice of appeal in relation to this conviction was filed on 16 June 2022 and received by registry on 24 June 2022, approximately eight months after the jury returned its verdicts. [6] Supreme Court Criminal Rules 2014 (SA) r 104G(1). The appellant submits that the notice of appeal was not filed within the 21‑day limitation period for the following reasons:1.The appellant was remanded in custody on 20 October 2021, when significant restrictions were in place due to the COVID-19 pandemic. This created difficulty for the appellant’s solicitors in communicating with him while he was in custody.2.The solicitor who acted for the appellant at trial took steps to file a notice of appeal, but, at some point between 11 October 2021 and 1 March 2022, the file was transferred to another solicitor, Almeida & Associates.3.On 1 March 2022, approximately four months after the expiration of the 21-day limitation period, the appellant contacted his current legal representative. At this point, conduct of the matter had passed through three separate legal practitioners.4.The necessary paperwork required for the appellant’s legal representation and funding from the Legal Services Commission was not provided until 22 March 2022. Further, when the paperwork was eventually provided, it was incomplete.5.It was submitted that a substantial amount of time was required to formulate the preliminary views necessary to obtain funding from the Legal Services Commission. Issues relating to the appellant’s funding were not resolved until 5 May 2022.6.Around 22 March 2022, the appellant’s current solicitor received a large volume of material pertaining to this appeal, an unrelated trial, and an earlier trial which had been the subject of the first appeal.[7] It was submitted that a significant amount of time was required to sort through, collate and organise the documents relevant to this appeal.[7] See R v Tipping [2019] SASCFC 41.7.On 19 April 2022, a request to registry was submitted for the provision of the trial transcript which was provided on 29 April 2022.8.On 27 May 2022, a request was made to the Director of Public Prosecutions (SA) for the provision of various exhibits that had not been provided by the appellant’s interim solicitors during the transfer of conduct over the matter. These materials were provided on 8 June 2022.9.It was submitted that due to the complexity of the issues raised on appeal, a significant amount of time was required for the appellant’s current solicitor to review the material in relation to each of the three separate appeals and formulate legal arguments pertaining to the grounds of appeal for each of those three separate matters.