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 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
It is axiomatic that a person arrested without a warrant is entitled to be told the reason why he or she is being arrested. This obligation is additional to the statutory obligations under s 78 and s 79A of the Summary Offences Act with respect to any arrest made under the provisions of s 75 of that Act.
In a carefully reasoned judgment the magistrate analysed the relevant authorities in this State which establish that the principles enunciated by the House of Lords in Christie v Leachinsky apply in South Australia, irrespective of whether a person is arrested under the provisions of s 75 of the Summary Offences Act or not: R v Stafford (1976) 13 SASR 392.
The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, to call attention to others for whom they may have been mistaken, to give some other exculpatory reason, and/or to assert that further enquiries may save them from the consequences of false arrest. It is to enable arrested persons to know in substance what acts they are alleged to have perpetrated so that they can explain their conduct: State of New South Wales v Delly (2007) 70 NSWLR 125 per Ipp JA at 130.
Each case depends upon its own facts. It has never been the law that the arrested person must be given detailed particulars of the case against him. He must simply be told why he is being arrested. In some cases it will be necessary for the officer to give more facts than in others: per Clarke LJ in Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155.
The extent of the information that needs to be provided is dependent on the particular circumstances of the case. No precise language is required, it is the substance of the information conveyed that is relevant so that the reason for the arrest must in substance be conveyed to the arrested person: Christie v Leachinsky per Viscount Simon at 573.
There is no authority which supports the proposition advanced by the appellant that a suspect in the appellant’s position must be provided with all particulars including the acts or types of acts which are the subject of the allegations and the time frame of the offending.
It needs to be borne in mind that in this case the appellant was arrested for sexual offences against two children. The police officer confirmed the identity of the appellant at the outset. Accordingly, there was no cause for the appellant to claim that the police had arrested the wrong person. When the appellant was informed that he was being arrested for offences of unlawful sexual intercourse and indecent assault, it was conveyed to him that the offences were of a sexual nature and that they involved young children. The arrest occurred against the background that the appellant had previously been interviewed about the allegations at least in relation to one of the children.
In these circumstances, there was nothing improper about the police officer’s decision to inform the appellant of his rights and to deliver the caution before he proceeded to answer the appellant’s question.
Indeed it might be said that the police officer was obliged by the terms of s 79A of the Summary Offences Act to proceed in that way before entering into any further discussion and answering any questions that the appellant might have.
In Mariner v Police [2004] SASC 432 Besanko J considered the lawfulness of an arrest where the police did not immediately inform the appellant of the offences for which he was under arrest. Although the circumstances of that case are somewhat more extreme than the behaviour of the appellant in this case, the facts are not dissimilar. The appellant was found hiding on the ground behind a fence. When the police officer approached him, placed his arm on the offender’s right shoulder and asked him to stand up, the offender responded abusively and tried to flee.
The court found that the delay between the act of arrest and the advice relayed to the offender that he was under arrest, was caused by the appellant’s own conduct in becoming abusive and trying to flee. In this respect, the case fell within one of the well established exceptions to the principle in Christie v Leachinsky. That is, a person arrested cannot complain that he has not been supplied with adequate information, as and when he should be, if he himself produces a situation which makes it practically impossible for him to be informed e.g. by immediate counter attack or by running away: Christie v Leachinsky at 573.
The magistrate considered the relevant principles established by these authorities and concluded correctly in my view, that the facts of this matter fell within one of the established exceptions to the principles founded in Christie v Leachinsky. She said at [81] to [84]:
I find that Detective Graham did not act unlawfully when he attempted to restrain the defendant. I accept that Detective Graham had an obligation to tell the defendant of the essential legal and factual ground for his arrest. It is not the law that he had to provide all of this information at the very moment that he told the defendant that he was under arrest. At the very time the officer told the defendant he was being arrested, he also had a duty to give him his arrest rights. In my view it was lawful for the officer to provide the information he did, to give the defendant his arrest rights so that he understood his right to silence, and to then provide further factual material relevant to the ground for arrest once he had submitted to the arrest procedure.
He was, in my view, not obliged to provide all of the particulars mentioned by Defence Counsel in his submissions. In my view, it would have been sufficient, in the circumstances of this case, for the officer to have identified the name of the Complainants. I find that Detective Graham intended to do this once he had given the arrest rights and in particular once the defendant knew he had the right to remain silent. He was interrupted in the arrest processes by the defendant walking off and by his failure to listen to the arrest rights as they were being given. In my view, this case falls within the Christie v Leachinsky exception recognised in Police v Mariner. The defendant having been told that he was under arrest for the sexual offences specified, and having been told that he would be told who the Complainants were once his rights had been given, himself caused the delay in the provision of that information by walking off, not cooperating with the officer and by refusing to come with the officer until he was sprayed and restrained from walking away further.
I reject the submission that the arrest was somehow tainted by the fact that Detective Graham did not show simple courtesy and humanity in attending to effect the arrest without notice. Whilst it was open to the officer to arrange for the defendant to attend at the police station or to advise him of his imminent arrest, the officer was also entitled to act in the manner that he did. Given that his intention was to arrest the defendant, ascertain whether he wished to say anything and then bail him, or at least consent to bail, I consider that the officer’s approach was, in any event, a legitimate approach.
I am therefore satisfied beyond reasonable doubt that at all times during the incident that followed, Detective Graham was acting in the execution of his duty in that he was in the process of arresting the defendant so as to convey him to a police station where he could be interviewed, charged and released on bail with non contact conditions.
Having read the transcript of the evidence and also having viewed the video which records the circumstances surrounding the arrest of the appellant, his conveyance to Kingscote Police Station and his subsequent charging at the police station, I consider that it was open to the magistrate to make the findings of fact which she did.
I would add that neither counsel, on the hearing of this appeal, challenged the magistrate’s findings of fact as to the precise circumstances surrounding the arrest of the appellant.
The appellant has been unable to identify any error of fact or law made by the magistrate in the course of her judgment which might cast doubt on her conclusion that the appellant was lawfully arrested. Having read the evidence at the trial and viewed the video, I respectfully agree with the magistrate’s findings and conclusions.
For these reasons the appeal is dismissed.