Webster v McIntosh

[1980] FCA 156

Re: EDWARD DAVID WEBSTER and WAYNE COLIN DAFF
And: VICTOR JOHN McINTOSH (1980) 49 FLR 317
No. F.C. 14 of 1980
Police - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Brennan(1), Deane(2) and Kelly(3) JJ.

CATCHWORDS

Police - Arrest without warrant - Powers of arrest - Commonwealth Act and A.C.T. Ordinance - Inconsistency - Crimes Act 1914 (Cth.) s.8A; Police Ordinance 1927 (A.C.T.) s.18(e).

Police - Arrest without warrant - Powers of arrest - Commonwealth Act and Australian Capital Territory Ordinance - Inconsistency - Crimes Act 1914 (Cth), s. 8A - Police Ordinance 1927 (A.C.T.), s. 18 (e).

Statutes - Interpretation - Inconsistency - Commonwealth Act and Australian Capital Territory Ordinance - Partial repeal - Crimes Act 1914 (Cth), s. 8A - Police Ordinance 1927 (A.C.T.), s. 18 (e).

HEADNOTE

The appellants were two police officers who were at the material time members of the police force of the Australian Capital Territory established under the Police Ordinance 1927 (the Ordinance). They were successfully sued in the Supreme Court of the Australian Capital Territory for damages for wrongful arrest and wrongful imprisonment, but the plaintiff failed on a count of malicious prosecution. McIntosh v. Webster (1980), 43 FLR 112.

The appellants relied on s. 18 (e) of the Ordinance to furnish statutory justification for the arrest. That section provides as follows:

"Any member of the Police Force, without any warrant other than this Ordinance, at any hour of the day or night, may apprehend - . . .

(e) any person whom he has reasonable cause to suspect of having committed, or being about to commit, any offence."

The trial judge, Connor J., held that in so far as s. 18 (e) related to a person suspected of having committed an offence - as distinct from a person suspected of being about to commit an offence - s. 18 (e) was impliedly repealed by s. 8A (in its amended form) of the Crimes Act 1914. That section now reads:

"Any constable may, without warrant, arrest any person, if the constable has reasonable ground to believe -

(a) that the person has committed an offence against a law of the Commonwealth or of a Territory; and

(b) that proceedings against the person by summons would not be effective."

The principal question on the appeal was whether s. 8A of the Crimes Act 1914 precluded reliance upon s. 18 (e) of the Police Ordinance 1927.

Held: In dismissing the appeals - (1) Section 8A of the Crimes Act 1914 defines the power to arrest in respect of an offence against the laws of the Territory and prescribes exhaustively the conditions governing the exercise of that power. The conditions prescribed by s. 18 (e) of the Police Ordinance 1927 are inconsistent with those prescribed by s. 8A of the Crimes Act 1914 and thus repugnant to that Act. The relevant test is not whether the Act can be construed as consistent with the Ordinance, but whether the Ordinance is repugnant to the Act. The power to make Ordinances pursuant to s. 12 of the Seat of Government Act (Administration) Act 1910 does not authorize the making of an Ordinance repugnant to an Act of the Parliament. Federal Capital Commission v. Laristan Building & Investment Co. Pty. Ltd. (1929), 42 CLR 582, referred to. Section 18 (e) of the Police Ordinance 1927 must yield accordingly.

(2) In relation to s. 24 (1) of the Police Ordinance 1927, which provides: "Any person apprehended without a warrant shall be forthwith delivered into the custody of the member of the Police Force who is in charge of the nearest police station, in order that the person may be secured until he can be brought before a magistrate to be dealt with according to law, or, if the person has been apprehended for any offence against this Ordinance, or any offence punishable upon summary conviction, or if in any other case the member of the Police Force deems it prudent to take bail, until he has given bail for his appearance before a magistrate", to deliver a prisoner into the hands of the police officer in charge is to do what is required in order to continue the custody of the prisoner which commenced with the arrest.

Austin v. Dowling (1870), LR 5 CP 534, approved.

HEARING

Canberra, 1980, October 1-2; November 6. #DATE 6:11:1980

APPEAL.

Appeal to the Full Federal Court of Australia against a decision of the Supreme Court of the Australian Capital Territory (Connor J.).

T. R. Cole Q.C. and G. Kinnane, for the appellants.

D. M. J. Bennett Q.C. and G. Brzotowski, for the respondent.

Cur. adv. vult.

Solicitor for the appellants: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Dare Reed.

P. H. MORRISON

ORDER

1. The appeal be dismissed.

2. The appellants pay to the respondent his costs of the appeal.

Appeal dismissed with costs.

JUDGE1

The appellants are two police officers who were at the material time members of the Police Force of the Australian Capital Territory established under the Police Ordinance 1927 (the Ordinance). They were sued in the Supreme Court of the Australian Capital Territory for damages on three counts: wrongful arrest, wrongful imprisonment and malicious prosecution. The respondent, the plaintiff in the action, failed on the count of malicious prosecution but was awarded $2,000 damages on the other two counts together with his costs.

At about 10.12pm on 17 October 1975 in Canberra, the appellants arrested the respondent on a charge of unlawful assault, an offence against a law of the Territory. The learned trial judge (Connor J.) found that the appellants had reasonable grounds for believing and believed that the respondent had committed that offence shortly before the arrest. In these circumstances, there being no extra-territorial element in the facts of the case, the appellants placed primary reliance upon the provisions of s.18(e) of the Ordinance to furnish statutory justification for the arrest. The clause of the Ordinance reads:
"Any member of the Police Force, without any warrant other than this Ordinance, at any hour of the day or night, may apprehend -

. . . . . .

(e) any person whom he has reasonable cause to suspect of having committed, or being about to commit, any offence;"
Connor J. held, however, that insofar as s.18(e) related to a person suspected of having committed an offence - as distinct from a person suspected of being about to commit an offence - s.18(e) was impliedly repealed by an amendment made to s.8A of the Crimes Act 1914, a section that was inserted into that Act in 1926 and amended in 1960. The section now reads:
"Any constable may, without warrant, arrest any person, if the constable has reasonable ground to believe -

(a) that the person has committed an offence against a law of the Commonwealth or of a Territory; and

(b) that proceedings against the person by summons would not be effective."
His Honour found that the arrest was not justified under s.8A because neither of the appellants had reasonable ground to believe that proceedings against the respondent by summons would not be effective.

The appellants do not challenge that finding but, seeking to rely on s.18(e) of the Ordinance, submit that his Honour was in error in holding that s.18(e) was partially repealed. The principal question which arises on this appeal is whether the provisions of s.8A preclude the appellants from relying upon s.18(e). The appellants' argument assigned to s.18(e) an operation which would restrict it to the arrest of an offender found within the Australian Capital Territory for an offence committed in the Territory against the laws of the Territory or of the Commonwealth; and the argument assigned to s.8A an operation with respect to the arrest of an offender, whether within the Territory or elsewhere, for an offence committed either inside or outside the Territory against the laws of the Commonwealth or of any of its territories.

It was submitted that s.8A, a general provision, did not affect the operation of s.18(e), a special provision: generalia specialibus non derogant. By applying this maxim of interpretation Lord Parker C.J. in Gelberg v. Miller (1961) 1 W.L.R.153 at p.159 reconciled apparently inconsistent provisions in the one statute conferring differing powers of arrest; and the maxim may be applied to reconcile apparently inconsistent laws passed by the same legislature conferring differing powers of arrest (see Maybury v. Plowman (1913) 16 C.L.R.468 at pp.473, 474). In such a case, reconciliation is effected by so construing the two laws that they are consistent and complementary, limiting the meaning and operation of the more general law to leave room for the operation of the more particular law. If reconciliation cannot be effected, a subsequent general law is held impliedly to repeal an earlier particular law; but there is a presumption against inconsistency and implied repeal, and the application of the maxim gives effect to that presumption. As Wood V-C said in Fitzgerald v. Champneys (1861) 2 J.&H. 31 at p.54; 70 E.R.958 at p.968, in a passage cited by Barton A.C.J. in Maybury v. Plowman (supra, at p.474):
"In passing the Special Act, the Legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention to have intended to derogate from that which, by their own Special Act, they had thus carefully supervised and regulated."
Though the maxim may usefully be applied where the two apparently inconsistent laws are laws of the same legislature, there is neither need nor occasion for applying the maxim where they are not: see Butler v. Attorney-General (Vict.) ((1961) 106 C.L.R.268 at p.276).

Where one of the laws is an Act of the Parliament and the other is an Ordinance of the Australian Capital Territory made under s.12 of the Seat of Government (Administration) Act 1910, the relevant question is not whether the Act can be so construed as to leave room for the operation of the Ordinance, but whether the Ordinance is repugnant to the Act. The power to make Ordinances conferred by s.12 does not authorize the making of an Ordinance which is repugnant to an Act of the Parliament (Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. (1929) 42 C.L.R.582 at p.588), and s.12 does not sustain an Ordinance if it becomes repugnant to a later Act of the Parliament. To the extent to which an Ordinance is repugnant to an Act, the Ordinance has no operation. It is not now material to discuss whether repugnancy works this result by denying power to make or sustain the Ordinance or by attributing an overriding effect to the Act. In the present case, all that needs to be ascertained is whether the Ordinance is inconsistent with and thus repugnant to the Act in the material respect.

The starting point is the meaning and operation of the Act. Upon that matter the Ordinance sheds no light, for the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised (The Great Fingall Consolidated Ltd. v. Sheehan (1905) 3 C.L.R.176 at p.184; Jackson v. Hall (1980) 2 W.L.R.118).

Putting the Ordinance to one side, there appears to be no reason for restricting the ordinary meaning of the language in s.8A, though it may be that the members of a local police force are to be regarded as constables only within the limits of their respective localities. Be this as it may, s.8A confers a power upon members of the Police Force of the Territory to arrest an offender for an offence against the laws of the Territory when the offender is found within the Territory. In the circumstances of the present case, the section would have operated to confer upon the appellants a power to arrest the respondent if the conditions which it imposes upon the exercise of the power had been fulfilled.

Section 18(e) would confer a power upon members of the Police Force of the Territory to arrest an offender for an offence against the laws of the Territory when the offender is found within the Territory. Either the power which s.18(e) would confer is additional to the power conferred by s.8A, so that either power is available whenever the conditions governing its exercise are fulfilled, or s.18(e) is inconsistent with and repugnant to s.8A.

Inconsistency is not necessarily demonstrated by the prescription of different conditions to govern the respective exercise of two or more powers, provided the exercise of one power would not trespass upon rights, powers or privileges secured by the conditions governing the exercise of the other or others. In Earl Derby v. Bury Improvement Commissioners (1869) L.R.4 Exch.222, for example, a power to make drains conferred upon Commissioners by a local Act was held to be cumulative upon a power to make drains conferred by a general Act, although the conditions as to the giving of notice were different. It was held that the condition as to giving notice was a mere limitation upon the power, and did not entitle any person to receive the notice. But powers to arrest are powers of a different character, and the conditions governing their exercise are a charter of the liberty of the subject. The power to arrest is not a facultative power susceptible of exercise without diminishing the rights of another; of its nature, its exercise infringes what Fullagar J. called "the most elementary and important of all common law rights", the right to be free from interference with person and liberty (Trobridge v. Hardy (1955) 94 C.L.R.147 at p.152).

Liberty ends where the power of arrest begins. There is a legal immunity from arrest and from the threat of arrest unless and until the conditions governing the exercise of the arresting power are fulfilled. The extent of this immunity, no less than the extent of the power of arrest, is fixed by the laws prescribing these conditions; for immunity and the power to arrest are correlatives, and laws which define the power measure the immunity.

When two laws each purport to create a general power to arrest in the same place with respect to the same offence or class of offences, but impose different conditions for the exercise of those powers, then the laws are inconsistent and one of them must yield, unless it be possible to construe the laws together, reading down one or both of them to give them a complementary operation. That is not possible when the Act confers upon the members of the Police Force of the Territory a power to arrest in respect of all offences committed against laws of a Territory, and the Ordinance purports to confer a power to arrest in respect of the same offences. The immunity from arrest which Parliament determines by prescribing the conditions governing the exercise of the power to arrest is not amenable to erosion by the making of an Ordinance.

The 1960 amendment, which added the words "or of a Territory" to s.8A(a), expressed a clear intention that the power to arrest without a warrant for offences against Territorial laws should be subject to the same conditions as those which Parliament had prescribed to govern the exercise of the power to arrest for offences against laws of the Commonwealth.

At the time when the 1960 amendment was enacted, R. v. Bernasconi (1915) 19 C.L.R.629 may have been thought to deny to laws of a Territory the character of laws of the Commonwealth; but Spratt v. Hermes (1965) 114 C.L.R.226 put that notion to rest and the laws of a Territory are now revealed to be part of the laws of the Commonwealth. Whether in its original or in its amended form, s.8A defines the power to arrest in respect of an offence against the laws of the Territory and prescribes exhaustively the conditions governing the exercise of that power. Until Parliament otherwise provides s.8A declares the extent of immunity from arrest. The conditions prescribed by s.18(e) of the Ordinance are inconsistent with those prescribed by s.8A, and s.18(e) falls accordingly.

It follows that the appellants were without statutory justification for their arrest of the respondent, and their appeal upon the principal question fails. There is a subsidiary question for determination, which turns upon s.24(1) of the Ordinance. His Honour awarded damages against the appellants upon the footing that they were responsible for the respondent's imprisonment from the time of his arrest until he was released on bail some three hours later. It appears that, an hour or so after the arrest, the respondent was delivered into the custody of the sergeant in charge of the watchhouse who, after photographing and fingerprinting the appellant and keeping him in custody, finally released him on bail.

It was submitted on behalf of the appellants that, once a prisoner is delivered into the custody of the member of the Police Force in charge of the police station, the effect of the arrest is spent and his custody thereafter is to be attributed to the authority vested by s.24(1) of the Ordinance in the police officer in charge of the station. That provision reads:
"Any person apprehended without a warrant shall be forthwith delivered into the custody of the member of the Police Force who is in charge of the nearest police station, in order that the person may be secured until he can be brought before a magistrate to be dealt with according to law, or, if the person has been apprehended for any offence against this Ordinance, or any offence punishable upon summary conviction, or if in any other case the member of the Police Force deems it prudent to take bail, until he has given bail for his appearance before a magistrate."

The argument overlooks the duty which s.24(1) places upon the police officer in charge, namely, to secure the prisoner until he can be brought before a magistrate or until he is bailed. Therefore, to deliver a prisoner into the hands of the police officer in charge is to do what is required in order to continue the custody of the prisoner which commenced with the arrest. As Willes J. said in Austin v. Dowling (1870) L.R.5 C.P.534 at p.539:
"How long did that state of false imprisonment last? So long, of course, as the plaintiff remained in the custody of a ministerial officer of the law, whose duty it was to detain him until he could be brought before a judicial officer."

The processes of photographing and fingerprinting were, as his Honour found, ordinary and known incidents of the custody in which the appellants had placed the respondent, and it was right to take those incidents into account in assessing damages. There was no error of principle affecting that assessment.

It is unnecessary, in the light of these conclusions, to deal with the delay on the part of the appellants in delivering the respondent into the hands of the watch-house sergeant. Whether that delay was in breach of the duty imposed by s.24(1), and whether a breach of that duty would give rise to a separate cause of action in any event are matters which do not require decision, for his Honour awarded damages in respect of the keeping of the respondent in custody during that time.

I would dismiss the appeal with costs.

JUDGE2

I agree with the judgment of Brennan J.

JUDGE3

I agree with the conclusion reached by Brennan J. that the Appeal should be dismissed with costs. I agree with his reasons and have nothing to add.