Turner v Maher
[1990] TASSC 87
•6 April 1990
Serial No B10/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Turner v Maher[1990] TASSC 87; B10/1990
PARTIES: TURNER, James George
v
MAHER, Edward David
FILE NO/S: LCA 102/1090
DELIVERED ON: 6 April 1990
JUDGMENT OF: Underwood J
Judgment Number: B10/1990
Number of paragraphs: 15
Serial No B10/1990
List "B"
File No LCA 102/1989
JAMES GEORGE TURNER v EDWARD DAVID MAHER
REASONS FOR JUDGMENT UNDERWOOD J
6 April 1990
The appellant's conviction for assault contrary to the Police Offences Act 1935, s35(1) must be quashed. Learned counsel for the respondent did not submit to the contrary.
In summary form, the material facts as found by the learned magistrate were that prior to 22 December 1988, the appellant was the lessee of a farming property at Gordon. The property was owned by Mr and Mrs Whitford who resided in Queensland. The learned magistrate found that the lease had been lawfully terminated by the lessor and that on 9 January 1989 the appellant was no longer entitled to be in possession of the demised premises. On that day, a Mr Graeme–Evans and a Mr Hocking, acting as agents of the lessors, entered onto the demised property with the intention of resuming possession. The learned magistrate found that Messrs Graeme–Evans and Hocking were entitled to effect re–entry and that their presence on the property was lawful. On the hearing of the motion to review, learned counsel for the appellant abandoned those grounds which sought to challenge the findings that the lease had been lawfully terminated and that Messrs Graeme–Evans and Hocking were not trespassers.
Apparently out of a concern that a breach of the peace may occur, one Senior Constable Hodgkinson was also present. The appellant was the owner of a number of sheep kept on the property. After entering the property, Messrs Graeme–Evans and Hocking commenced to round up the appellant's sheep apparently with the intention of removing them from the leased property to another property owned by the appellant. According to the learned magistrate the following then occurred:
"He [Mr Graeme–Evans] was with Hocking attending to the business of rounding up the defendant's sheep when he saw the defendant grab Hocking's sheep dog. He, that is Graeme–Evans, saw the police officer intervene. The defendant approached him, grabbed him roughly by the neck and yelled, 'get off my property you little bastard'. This evidence was corroborated by the police officer. The defendant admitted grabbing the complainant but says that Graeme–Evans ran towards him shouting out words such as, 'he's a maniac, he'll kill you.' I reject the defendant's evidence about that. The defendant says he grabbed the complainant by the shirt. He said that his purpose was to keep him still so he could talk to him. The defendant in cross–examination said ' I confronted him to steady him down and talk to him, face to face. There was nothing about self defence, I was trying to restrain him.' Upon seeing the defendant's action, 1/C Constable Hodgkinson arrested him for assault. He put his hand on the shoulder, the defendant tried to pull away and the police officer was forced to restrain him. The defendant, on the evidence of the police officer anyway, struggled quite violently."
Subsequently, the appellant broke free from Senior Constable Hodgkinson and ran off. He was later apprehended. In result he was charged with assaulting Mr Graeme–Evans contrary to the Police Offences Act 1935, s35(1), resisting a police officer in the execution of his duty contrary to the Police Offences Act, s34B(1)(a)(i) and escape contrary to the Code, s107. He was convicted of all charges.
In essence, the learned magistrate found that the appellant was not entitled "to use any force at all". He said, "In my view he [the appellant] took the law into his own hands and, even if Graeme–Evans was a trespasser I still find the defendant was not entitled to use any force, let alone the force which he did use."
The learned magistrate went on to find that by reason of the unlawful assault Constable Hodgkinson had authority to effect an arrest and it followed that the resisting and later escape from custody constituted breaches of the law.
At the hearing and on this appeal, it was submitted on behalf of the appellant, that the force the appellant admittedly applied to Mr Graeme–Evans was justified in law and as a consequence, the arrest was unlawful. It followed, so the argument ran, that the conviction for resisting arrest and escape from lawful custody should also be quashed.
The Code, s44 provides:
"It is lawful for a person in peaceable possession of any moveable property under a claim of right, ... to use such force as is necessary to defend his possession of the property against any person whether entitled by law to possession thereof or not; provided that such force is not intended and is not likely to cause death or grievous bodily harm."
The appellant relied upon the above provision and on his behalf it was submitted that the appellant's acts as found by the learned magistrate were justified in law. This submission is correct. Although the issue was the subject of debate between counsel and the learned magistrate during addresses, it does not appear to have been specifically adverted to by the latter in his reasons for judgment.
It was not contended that the force used by the appellant was any more than was necessary to defend his possession of his sheep nor that such force was either intended or likely to cause grievous bodily harm. A correct application of the law to the facts as determined by the learned magistrate demonstrates that error occurred in the finding that the appellant's assault on Mr Graeme–Evans was unlawful and in breach of the Police Offences Act, s35(1). As I have said, the conviction for unlawful assault must be quashed. The equivalent provision in the Queensland Code (s275) was applied in Greenbury v Lyon [1957] St R Qd 433. See also Richter v Risby [1987] Tas R 36.
However, it does not of necessity follow that the other two convictions must also be quashed. So far as is relevant for the purposes of this appeal, a police officer's power to arrest without a warrant arises from:
1 The Code, s27.
2 The Police Offences Act, s55.
3 The common law.
Referring to a constable's power at common law to arrest without warrant Brennan J. said in Halliday v Nevill (1984) 155 CLR 1 at p12:
"Of course, a constable's power to arrest without warrant is limited. At common law, a constable is empowered to arrest without warrant any person whom he suspects on reasonable grounds of having committed a felony, but he is not empowered to arrest a person guilty or suspected of misdemeanours except where an actual breach of the peace by an affray or by personal violence occurs and the offender is arrested while committing the misdemeanour or immediately after its commission: Stephen, History of the Criminal Law of England (1883), vol 1, p193; Hale's Pleas of the Crown (1800), vol2, p85. And so it was held that a constable could not lawfully arrest and offender who, having assaulted the constable an hour earlier, retires to his house and closes and fastens his door: R v Marsden (1868) LR 1 CCR 131. At common law, a constable is entitled to enter on private property to effect an arrest within the limits of his common law power to arrest without warrant, although he would be a trespasser if he entered or remained on the property for any other purpose."
The common law position with respect to a constable's right to arrest without warrant in cases of offences against certain provisions of the Police Offences Act finds statutory expression in s55 of that Act which provides as follows:
"55–(1) Any police officer may arrest, without warrant, any person found offending against any of the provisions of –
(a) Division I of Part II;
(b) Parts III to V; or
(c) Any section of this or any other Act in respect of which it is specially provided that he may so do.
....
(5) For the purposes of this section, a person is said to be 'found offending' if he does any act, or makes any omission, or conducts or behaves himself, and thereby causes a person who finds him reasonable grounds for believing that he has, in respect of such act, omission, or conduct, committed an offence against this Act."
Unlawful assault contrary to s35 is enacted in Part III of the Act.
Even in the absence of subs.(5) there is no doubt that a bare statutory power of a constable to arrest a person "[found] committing a crime" (the Code, s27(1)) or "found offending against the provisions of [the Act]" (Police Offences Act, s55(1)) is to be construed as meaning a power to arrest where the constable honestly believes on reasonable grounds that a person is committing an offence. With respect to the Malicious Trespass Act 1827 (UK), s28, which gave a power to arrest a person found committing any offence against the Act, Lord Bridge of Harwich in Wills v Bowley [1982] 3 WLR 10, after referring to a number of statutes providing for a power to arrest and several decided cases, said at pp45–46:
"I understand that your Lordships are all agreed, and I think it is clear beyond argument, that the extent in each such case of the power of arrest must be the same whatever the particular offence to which it is applied. But all these sections have this in common, and no doubt many other examples could be found of provisions to the like effect, that the power of arrest in flagrante delicto is coupled with an obligation to take the person arrested before a justice 'forthwith'. In relation to such provisions I find totally convincing the passage I have cited above from the judgment of Bankes LJ in Trebeck v Croudace [1918] 1 KB 158 as justifying his conclusions: (1) that the arrest is the initial step to some form of judicial or quasi judicial proceeding; (2) that the person intended to judge whether what he observes justifies the arrest is the person called upon to act; (3) that it must follow that he is justified by an honest belief on reasonable grounds that he has observed the person he arrests committing a relevant offence."
On behalf of the appellant it was contended that, by his own admission, Senior Constable Hodgkinson believed that the sheep in question belonged to the appellant and therefore he ought to have known that the use of necessary force by the appellant to defend his possession of those sheep was lawful. Thus, it was submitted that any belief by the constable that the appellant had committed an unlawful assault was not based on reasonable grounds. The submission involves the proposition that the constable ought to have been aware of the niceties of the law concerning justification for assault there being no evidence with respect to his actual state of knowledge on this point. This submission can probably be disposed of by the observation that, after hearing all the evidence and after reserving his decision, the learned magistrate believed that the appellant had committed an unlawful assault. A submission that in the circumstances confronting the police officer, a belief by him to the same effect was not based on reasonable grounds cannot be sustained.
The learned magistrate based his conclusion that the arrest was lawful on his finding that the appellant had committed an unlawful assault. There was no inquiry or finding made as to whether the constable honestly believed on reasonable grounds that the appellant was committing an assault at the time he effected the arrest. Notwithstanding the absence of inquiry and finding, learned counsel for the appellant submitted that this Court should finally determine the matter and I think that submission is correct. There is no other conclusion reasonably open upon the material before the learned magistrate other than that the constable did honestly believe on reasonable grounds that the appellant was committing an unlawful assault and that was the reason for making the arrest. This being so, the arrest was lawful and the convictions for resisting arrest and escape must stand. The orders of the court are that:
1The conviction for assault is quashed and in lieu thereof it is ordered that this matter of complaint be dismissed.
2The conviction for resisting arrest is confirmed.
3The conviction for escape is confirmed.
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