IN THE F td DERAL COURT OF AUST?PALIAN CAPITAL TERPITOPY DISTPICT REGISTRY GEVEPAL DIVISION JHIGES MAYING ORDER DAT= OF ORDER WHEE TALE THE COUFTS CRDEFG THAT AUSTRALIA No. (oe) a 4= a Ne ee eed CN APPEAY r?OK THE SUPPEME COMPT OF THE AUSTFALIAN CAPITAL TEPPITOPY BETWREN EDWAPD DAVIL WERST UF WAL COLI' CAP appellant. AL.D VICTOr .TOHM MeINTCCll Fesponder.— ROER Brennan, Deane and Kelly Jd. Canberra. 1. The appeal be dismissed. 2. The appellants pay to the resepondant hiz co3t3 of the a Hay [tw] 2. < about 10.12pm on 17 October 1975 in Canberra, th? appellants arrested the respondent on a charge of unlewf:l assault, an offence against a law of the Territory. The learnei trial judge (Connor J.) found that the appellants had reasonatle grounds for beiieving and believed that tre responcent hac committed that offence shortly before the arrest. In thece circumstances, there being no extra-territorial element in the facts of the case, the appellants placed prinary reitanc? upon the provisions of s.i8(e) of the Ordananee to furnish statutory justification for the arrest. The clause of the Ordinance reads: Any member of the Police Force, wit warrant other than this Ordinance, é*+ an the day or night, may apprehend - - woop rr e o} Wy (e) any person whom he has reasonable caise to suspect of having committed, or being about to commit, any offence;" Conror J. held, however, that insofar as s.18(e) related to a2 person suspected of having committed an offence - as distanect from a perscr. suspected of being adcut to commit an offence - s.13(e) was impliedly repealed cy an arendment mede to s YA oF the Crires Act 1924, a section that was unserted into tha- Act an 1926 and amended in 1960. The secticn now reads. " Any constable may, without warrant person, if the constable has yreascrnab believe - (a) that the person has sonmmittea an offcree agarnet a law of the Commonwealth or of 2 Tarritory; and J? (>) that proce weuld not fummMor Ss inconsistent laws passed by the same legislature occnferring differ:ng powers of arrest (see Mavbury v. Plowman (261s & t q 2 _ 16 C.L.P.468 at o>.473, 474). In such a case, reconciliation ls effectec by so construing the two laws that they are consistent and complementary, limiting the reaning and oper tion of the more general law to leave room for the operation crf the jrore particular law. If reconciliation cannet be effected, - subsecuent general lew is held impliedly to repeal ar earlier particular law; but there 1s a presummtion against incons:3tency and implied repeal, anc the application cf the waxim gives effect to that presumption. As Wocd Y-C said in Frtsr:z wy BI Champneys [1861] 2 J. H. 31 at p.54; 75 -P.959 at p.9bo, in & passage cited by Barton A.C.J. in Maybiry v. Plovran (oupra, ct p.474): "In passing the Speeial Act, the Legislature had their attention directed to the special case which the Act was meant to meet, and cons_dered and providee for all the circumstances of tnat special case; and, having so done, they are not to be considere¢ by a general enactment passed sudsequently, and making no menticn of anv such intention to have intende2 to derogate frem that which, by their own Special Act, they had thu. carefully supervised anc regulated. " Though the mexin may usefully be applied where the tye aprarentl; inconsistent laws are lavs of the sare legisiature, there ic neither need nor occasion for applying tha maxim rere the. ar: —-1 rot: see Butler v. Attorney-General (iet.) ((1301) 195 C.LLR. Ste at v.278). 6. Putting the Ordinance to one sida, there aprear. te be no reason for restricting the ordinary meaning cF the lanz.asz2 in s.$3A, though it may be that the menkers oF 4 £ i oree are to be regarced as constatles cnly within tac lipits o their respective localities. Be this as it mey, 5.8A confer: pover upon members cf the Police "orce of d he Territory to areect an offender for an offence against the laws of the Territery wien the offender is found within the Territory. In the clrcuTrstane of tne present case, the section would have oferated to confer upon tne appellants a power to arrest the respvorcer.t 1f the QO onciticns which it imposes apon the exerezse of the pover nas en fulifillec. nm @ Section 18(e) would confer a pcver upon merrears c7- Police Force of the Territory to arrest an oflerder for an offence against the laws of the Territo»y wien the offencer is found within the Territory. Either the power which s.18(2) would confer 1s additional to the pcewer conrerred Ly 5.84, so that either power is available whenever +..e conditicns zaveruint on its exereise are fulf2iled, or s.18(2) 15 ineonszetent witn erd SoS re Be nant to s.3A. uy i Incensistercy i3 not necessarily Cerenstrated by the e.ercise of two or more powers, prevideu tre exereise of one tL, WoLle not trespass upcon pligics, rovers oT privilijes se2urad or class of offences, but 1mpose aifferent conditions for ths exercise of those powers, then the laws are incontrstint end cn2 of tnem rust yield, unless it De posslile te oor true the 2 i) togetner, reacing down one or both of them to five them 42 completrentary cperation. Theat 1S not pourible whan the ..et confers upon the members of the Police Force oz the Territer, a power te arrest in respect of all otfences conmitted azainct leis of a Territory, and the Ordinance purports to confer a power <3 arres= in respect of the same offences. The immunity fron errest which Parliament ceterrines by prescribing tne coné1tions governing tne exerczse of the power to amvest is not amanazle t+ erosion oy the maxing of an Ordinénce. The 195° amendrent, which added the vords "o we ' ora no fay we Territory" to s.84(a), expressec a clear intenticor 'that the t to arrest without a warrant for offences against Territoria A should be subject to the same cencrtiens es those which Parlzarent hed prescribed to govern the exercise of the power to arrest lon offences against laws of the Cowonweclth. At the tame wher the 19C° emrurdment vas enacted, F. v. 3epnasconi (19135) 19 C.u.P.3?2 may have peen thewenT te deny to lavs of a Torritery the crsrastir wf lavs oF the ecrmonvealth; Lut Svrett ve. Serres (ites) Tl) C.L.P.058 gut mral not.on ts rest and] the lave cf a Terzitery are new reveatel 72 24 10. the authority vested by s.24(1) of the Ordinance in the 'od GC - '! (2 c officer 2n charge of the station. That provision reads " Any person apprehended without a warrant srall be forthwith delivered into the custoéy cf the member of the Police Force who is 1n charge of the nearest police station, in order tnat the persen may be secured until he can be brought before a magistrate to be dealt with according to law, or, 1i the person has been apprenencec for any offence against this Crdinance, or any offence punishable apon sutmary conviction, or if in any other case the member of the Police Force deers i= prudent to take bail, until he has given bail for his appearance before a magistrate. " Tre argument overlooks the duty wnicr s.24(1) tlece upen the police officer in charge, namely, to secure the priss until he can be brought before = magistrate or until Fe is Eat Therefore, to deliver a prisoner inte the hands of the police rede -2 tne castody of the prisoner which commenced with the arrest. W2lles J. said in Austin v. Dowling [1870] L.R.& C.>.52h at > "How long did that state of false immrisorment leart" So long, of course, as the plaintiff remanred in the custocy of a mznisterial officer oF the lev, whose duty 1t was to detain him until he could Le brought before a judicial officer. " The proccsses of p..ctographing ani finewerpriutng i r P hy S t é€ ry rt) tr 'e, as his Hcencur found, crdinar, and known incidents of +>? c be steay on whic. the appellants hac placec the resrondent, anne it was right to take those ine.dents in n rr 2 account 1m agSebo.ing icer in charge is to do what 1s requirec in orier to continue IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. F.C. 14 of 1980 DISTRICT REGISTRY wees ws verv wv GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: EDWARD DAVID WLBSTLR and WAYNE COLIN DAV Appellants AND VICTOR JOHN Mc INTOSH Respondent CORAM Brennan, Deane and Kelly JJ. 6 November, 1980. REASONS FOR JUDGMENT DEANE J I agree with the yudgment of Brennan J. sok 2 4 ea bcertify thet thts ' true copy of the reasons for Judgment Its Honour Mr. Justice Deane . K Mets L ASSOCIATE herein of IN [tle FLODERAT COURT OF AUSTRALIA AUSTRALTAN CAPT&AL TEPRI TORY DISTRICT REGISTRY Ko, F.C. 11 of 190" we as aw GENERAL DIVISION QN APPLAL FROM LHP SUPREME COURT OT THE AUSTR "LO CAPITAL TERRITON BETWEEN. EDWAPD DAVID WERSTFP WALNE CCE LN DAF Appellants AND* VICIOR JOUN McINTOSH Respondent CORAM . Brennan, Deane and kell» JJ. 6 November 1980. ALLL J. : I agree vith the conclusion reached by Brennan J. that the Appeal should be dismissed with costs I agree with his reasons and have nothing to add. I hereby certify that this 15 a true copy of the Judgment of his Jlonour Mr. Justice kelly. 6 Nov 80 Associate. | _~