WALKER v Police - [2009] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WALKER v POLICE
[2009] SASC 164
Judgment of The Honourable Justice Kelly
5 June 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS
Appeal against conviction - appellant found guilty of resisting a member of the police force in execution of his duty - whether magistrate erred in finding that the arrest was lawful.
Held: appeal dismissed - arrest was lawful - in the circumstances the facts fell within the exception to the principle in Christie v Leachinsky.
Summary Offences Act 1953 (SA) s 7, s 75, s 78 and s 79A, referred to.
Christie v Leachinsky [1947] AC 573, applied.
State of New South Wales v Delly (2007) 70 NSWLR 125, discussed.
R v Stafford (1976) 13 SASR 392; Constable of Thames Valley Police [2004] 1 WLR 3155; Mariner v Police [2004] SASC 432, considered.

WALKER v POLICE
[2009] SASC 164
Magistrates Appeal
Kelly J
Introduction

The appellant appeals against a conviction imposed in the Christies Beach Magistrates Court on 15 January 2009. The appellant was found guilty of resisting arrest contrary to Section 7 of the Summary Offences Act 1953 (SA). He says that the arrest was unlawful.
On 16 July 2007 a police officer travelled to the property of the appellant on Kangaroo Island. After ascertaining the identity of the appellant he told him that he was under arrest for indecent assault and unlawful sexual intercourse. The police officer then commenced to inform the appellant of his rights under the provisions of Section 78 and Section 79A of the Summary Offences Act. During the reading of those rights the appellant repeatedly questioned the officer as to who had made the allegations. He was told that this information would be provided to him once the police officer had finished reading him his rights. As a consequence of the appellant turning to walk away while the police officer was still reading the rights to him, he was detained by force. Immediately thereafter he was given the further particulars of the sexual offences including the names of the two complainants.
The issue which arises on appeal is whether the arrest of the appellant was unlawful in the circumstances where he was given the further information after he had been detained and hand cuffed.
A further issue as to the alleged latent duplicity of the complaint charging the appellant with the offence of resisting arrest was abandoned on the hearing of the appeal.
Background
The circumstances of the appellant’s arrest have been set out in detail in the reasons of the magistrate delivered on 15 January 2009.
The key findings of fact relevant to the issues on this appeal are to be found in [10], [46] and [47] of her reasons. It is not necessary to repeat those findings of fact in any detail. Suffice to say that the magistrate accepted the explanation of the police…

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 WALKER v Police

Details

AGLC: WALKER v Police [2009] SASC 164
Case: [2009] SASC 164
Decision Date: 5 June 2009

CaseChat Overview and Summary

The appeal in Walker v Police was heard by the Supreme Court of South Australia, where the appellant contested his conviction for resisting a member of the police force during the execution of their duties. The primary issue the court had to address was whether the magistrate had erred in finding that the arrest was lawful. The appellant argued that the police officer's failure to immediately provide him with the particulars of the accusations against him, as required by section 79A of the Summary Offences Act, rendered the arrest unlawful. Specifically, the appellant contended that the arrest was not lawful because the police officer did not inform him of the identities of the complainants immediately upon his request. The appellant further argued that this failure could not be justified under the exception to the principle established in Christie v Leachinsky.

The court considered the arguments presented by the appellant and the magistrate's findings on the matter. It was noted that the police officer had attempted to inform the appellant of his rights as soon as practicable, and despite the appellant's interruptions, the officer proceeded to read the rights to him. The officer subsequently informed the appellant of the identities of the complainants within two minutes of restraining him. The court found that the circumstances of the arrest fell within the exception to the principle in Christie v Leachinsky, where it may be impracticable for a police officer to provide immediate particulars of an arrest due to the suspect's resistance or non-cooperation. The court held that the arrest was lawful because the officer had made a genuine attempt to comply with the statutory requirement as soon as practicable, despite the appellant's actions.

The Supreme Court dismissed the appeal, affirming the magistrate's decision that the arrest was lawful. The court concluded that the delay in providing the appellant with the particulars did not render the arrest unlawful, as the officer had acted within the bounds of the statutory requirements and the practical circumstances of the arrest. The court found that the magistrate's determination was supported by the evidence and the applicable legal principles. The final orders of the court upheld the conviction and sentence imposed by the magistrate.

Orders

Orders of the court

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Background

Background to the litigation

A further issue as to the alleged latent duplicity of the complaint charging the appellant with the offence of resisting arrest was abandoned on the hearing of the appeal. Background The circumstances of the appellant’s arrest have been set out in detail in the reasons of the magistrate delivered on 15 January 2009. The key findings of fact relevant to the issues on this appeal are to be found in [10], [46] and [47] of her reasons. It is not necessary to repeat those findings of fact in any detail. Suffice to say that the magistrate accepted the explanation of the police officer, Detective Graham as to why he did not immediately answer the appellant’s questions about who was making the accusations against him. She found that the police officer, in accordance with his duty under s 79A of the Summary Offences Act, made a decision to give the appellant his arrest rights as soon as practicable. During the course of informing the appellant of those rights, the appellant had interrupted on more than one occasion and demanded to know who had made the accusations. Detective Graham informed the appellant that he would firstly read him his rights and would then immediately proceed to give him the further particulars he had requested. During the course of reading him his rights the appellant turned and walked back towards his house. The detective attempted to take hold of him but was brushed off when the appellant became aggressive. The detective warned the appellant that he would spray him with capsicum if he did not go with the police. When the appellant kept walking he was sprayed, subdued and then physically restrained. Within two minutes after restraint the police officer finished reading the appellant his arrest rights and gave him the names of the two young girls who had made the complaint against him. In fact those young girls were the appellant’s grandchildren. The evidence revealed that the appellant had already been interviewed once before about the allegations made by one of the grandchildren. Argument on appeal The appellant’s contention on appeal was that the failure of the police officer to provide the further particulars immediately after being requested to do so by the appellant, rendered the arrest unlawful. The appellant complained that the magistrate had erred in concluding from the established facts that the circumstances were such so as to render it impossible or impracticable for the police officer to have informed the appellant of those particulars immediately when the appellant had requested them. It was argued that even though the particulars had been provided within two minutes of the appellant being subdued and restrained, it could not retrospectively render the arrest lawful. The appellant submitted that this factual scenario did not amount to an exception to the rule in Christie v Leachinsky [1947] AC 573. The appellant argued that it was impossible for him to have known without the particularisation of who was making the allegations, the grounds upon which he was being arrested. It was further submitted that in nodding assent to an invitation by the appellant to go inside his house and talk about the matter, the police officer had adopted a certain degree of deception which ought to have resulted, at the very least, in the magistrate excluding the evidence in the exercise of her discretion. The legal duty to inform a suspect why he or she is being arrested

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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