Wheare v Police

Case [2008] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

WHEARE v POLICE

[2008] SASC 13

Judgment of The Honourable Justice Gray

1 February 2008

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - POWERS OF ARREST

POLICE - RIGHTS, POWERS AND DUTIES - ENTRY UPON PREMISES

POLICE - ACTIONS FOR WRONGFUL ARREST, TRESPASS AND OTHER WRONGS

Appeal against conviction – charges arose during arrest by police on appellant’s residential property – appellant claimed police were not authorised to enter and remain on his property after he told them to leave – appellant claimed police were not acting in execution of their duty when entering his property and effecting his arrest – appellant claimed his arrest, without warrant, was not authorised by section 75 of the Summary Offences Act 1953 (SA) or section 271 of the Criminal Law Consolidation Act 1935 (SA) – appellant claimed “reasonable excuse” for refusing to provide his name and address to police – consideration of scope and application of common law power of arrest – consideration of scope and application of statutory powers of arrest – consideration of scope of police officer duties – consideration of meaning of “reasonable excuse” in section 74A (3)(a) of the Summary Offences Act – whether common law and statutory powers authorise police to enter and remain on private property to effect an arrest –– whether entry of police on to appellant’s property was at all times proper and lawful –– whether police were acting in the execution of duties when effecting arrest – whether appellant’s refusal to provide his name and address was reasonable.

Held: Appeal dismissed – entry of police on to appellant’s property and arrest of appellant was at all times proper and lawful – appellant’s arrest authorised by section 75 of the Summary Offences Act and common law power of arrest – section 75 of the Summary Offences Act and common law power of arrest authorise police to enter on to private property and remain for a reasonable time to effect an arrest – section 271 of the Criminal Law Consolidation Act does not apply to arrest by police – police were acting in the execution of their duty at all times – no evidence to support that appellant’s refusal to provide his name and address was reasonable.

Summary Offences Act  1935 (SA) s 5, s 6(1), s 6(2), s 22(1)(c) and s 75; Criminal Law Consolidation Act 1935 (SA) s 74A(3)(a) and s 271; Crimes Act 1900 (NSW) s 352(1) and s 352(2); Summary Offences Act 1978 (NT) s 47; Police Administration Act 1978 (NT) s 123(1), s 126 and s 158; Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 (SA); Acts Interpretation Act 1915 (SA) s 22; Criminal Investigation (Idendifying People) Act 2001 (WA) s 16, referred to.
Entick v Carrington (1765) 19 St Tr 1029; Semayne’s Case (1604) 77 ER 194; Halliday v Neville (1984) 155 CLR 1; Plenty v Dillon

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Details
AGLC
Wheare v Police [2008] SASC 13
Case
[2008] SASC 13
Decision Date

CaseChat Overview and Summary

In Wheare v Police, the appellant contested his conviction, which arose from his arrest on his residential property by police officers. The appellant argued that the police were not authorised to enter and remain on his property after he asked them to leave and that his arrest was unlawful as it was not authorised by the Summary Offences Act 1953 (SA) or the Criminal Law Consolidation Act 1935 (SA). The appellant also claimed he had a "reasonable excuse" for refusing to provide his name and address to the police. The court had to determine whether the police had the authority to enter the appellant's property and make an arrest without a warrant and whether the appellant's refusal to provide his name and address was reasonable. The court found that the police's entry onto the appellant's property and his arrest were lawful, as they were acting in the execution of their duties under the common law power of arrest and the statutory power under section 75 of the Summary Offences Act. The court also found that there was no evidence to support the appellant's claim that his refusal to provide his name and address was reasonable. The appeal was dismissed.

The court examined the scope and application of the common law power of arrest and the statutory powers of arrest under the Summary Offences Act and the Criminal Law Consolidation Act. The court held that the common law power of arrest and section 75 of the Summary Offences Act authorised police to enter private property and remain for a reasonable time to effect an arrest. The court also held that the police were acting in the execution of their duties when they arrested the appellant and that there was no evidence to support the appellant's claim that his refusal to provide his name and address was reasonable. The court found that the police's entry onto the appellant's property and his arrest were proper and lawful. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

As a matter of construction and policy, section 271 does not afford any greater or additional power than that conferred by section 75 of the Summary Offences Act. It is apparent that the “new” section 271 was enacted by the legislature as a statutory acknowledgement of the power of a citizen to effect an arrest in certain circumstances. The section does not extend to police officers.The Application of the Principle to the FactsEntry in the present case on to property and the arrest The police in the present case, having obtained information from the complainant neighbour in relation to alleged offending and notwithstanding that they had not witnessed the alleged offending, were entitled to exercise their arrest power in relation to Nathan. As Napier J observed in Feldman v Buck:[42][Counsel for the appellant] has argued that under this enactment the power to arrest is as it always has been – a power exercisable by the constable upon his own observation, or, at any rate, upon his beat. But it seems to me that it is impossible to restrict the application of the language to the case of a person encountered by a police officer on the beat or on patrol. It is a power given, indifferently, to every member of the police force, and it authorizes the apprehension of any person whom the officer (1) finds committing or (2) has reasonable cause to suspect of (a) having committed, or (b) being about to commit, any offence. Speaking generally, the power to arrest persons whom the officer “finds committing ... any offence” must, no doubt, be taken to contemplate the situation of a policeman on the beat or on patrol, and the power to arrest on suspicion of being “about to commit an offence” is, no doubt, directed, primarily, to the keeping of the peace, but the power to arrest “any person whom he ... has reasonable cause to suspect of having committed any offence” must plainly be taken as referring to cases in which “the power of arrest may be exercised some time after the offence has been committed. It may be based, not on the constable’s own observation, but on information received from others” (per Lord Denning M.R. in Wiltshire v. Barrett; cf. “what was he told that the plaintiff had done, and what was his suspicion?”[42] Feldman v Buck (1966) SASR 236 at 238-239 (footnotes omitted). The police were entitled to look over the defendant’s boundary fence to determine the whereabouts of Nathan. They were standing on parkland at the time of looking over the fence and their use of sensory perception – in this case, those of eyes and ears – did not constitute a trespass or a search. As Prior J observed in Questions of Law Reserved (No 3 of 1998):[43]I agree in particular with the submission put by the Director of Public Prosecutions that mere sensory perception, whether by eye, ear or nose, cannot of itself constitute a search. It follows that odours which emit from a person’s bag are exposed to the plain perception of the public at large. Thus a dog sniffing the area around a bag or parcel does not effect a search of that bag or parcel. It could perhaps be described as an act of identification, but certainly not a search.[43] Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223 at 224.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
Having regard to the circumstances of the alleged offence on either a subjective or objective analysis, there was either no or insufficient evidence upon which the magistrate could find on the balance of probabilities that the defendant had a reasonable excuse for his failure to provide his name and address.[53][53] Conners v Craigie (1994) 76 A Crim R 502 at 507.Conclusion This appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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