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an offence - as distinct from a person suspected of being about to commit an offence - s. 18 (e) was impliedly repealed by s. 8A (in its amended form) of the Crimes Act 1914.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…
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.
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Details
AGLC
Webster v McIntosh [1980] FCA 156
Case
[1980] FCA 156
Decision Date
CaseChat Overview and Summary
The case of Webster v McIntosh involved a dispute regarding the legality of an arrest conducted without a warrant by the police. The matter was heard and determined by the High Court of Australia. The appellants challenged the arrest's validity, arguing that it was unlawful due to inconsistencies between the Commonwealth Act and the A.C.T. Ordinance governing arrest powers.
The central legal issue was whether the arrest was valid under either the Commonwealth Act or the A.C.T. Ordinance, or both. Specifically, the court needed to determine if section 8A of the Crimes Act 1914 (Cth.) and section 18(e) of the Police Ordinance 1927 (A.C.T.) provided sufficient authority for the police to arrest without a warrant. The court also had to consider the interplay between these provisions and the extent to which they might conflict or complement each other.
The court examined the provisions of both the Commonwealth Act and the A.C.T. Ordinance. It concluded that the relevant sections did not create an inconsistency but rather provided a comprehensive framework for arrest powers. The court held that the police officer had the authority to make the arrest under section 8A of the Crimes Act 1914 (Cth.), which was sufficient to validate the arrest. Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellants pay to the respondent his costs of the appeal.