McLachlan v Mesics [1966] HCA 50

High Court of Australia Barwick C.J. Taylor, Menzies, Windeyer and Owen JJ. McLachlan v Mesics [1966] HCA 50

ORDER In each case appeal allowed and order of Richardson J. set aside. In lieu thereof order that the question asked be answered Yes and matter remitted to magistrate to be dealt with according to law. Costs of case stated in Supreme Court to be paid by respondent.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 26 Barwick C.J., Taylor, Menzies, Windeyer and Owen JJ.

Each of these appeals comes by special leave from the decision of Richardson J. in the Supreme Court on two cases stated by a stipendiary magistrate under s. 101 of the Justices Act, 1902-1965.

Before stating the facts it is convenient to set out the terms of s. 352 (1) (a) of the Crimes Act 1900 of New South Wales. It provides that "(1) Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, and take him, and any property found upon him, before a Justice to be dealt with according to law."

The facts, as found by the magistrate, are these. On the night of 17th January 1964, three uniformed officers of police, Constables Groch, McKenna and the appellant McLachlan, went in the course of their duty to Elizabeth Crescent, Queanbeyan. There a man named Curtis told Groch that he had been assaulted by three men one of whom was the respondent's son (Lazlo Mesics) and that he wished the men to be charged with assault. The officers were proceeding towards a house where the respondent (Gyula Mesics) lived when Lazlo Mesics came out of it. He struck Groch and knocked him to the ground and ran back into the house. He was followed by the officers and a violent struggle took place in the kitchen as a result of which Groch and McKenna finally overpowered Lazlo Mesics and handcuffed him. While this struggle was going on the appellant was guarding the door into the kitchen against two other men who were endeavouring to enter it. While McKenna was grappling with Lazlo Mesics, he saw the respondent, Gyula Mesics, entering the kitchen, holding an axe which was "aimed at Groch's back". McKenna called out to the appellant who at once charged the respondent and both fell to the floor. After a struggle the appellant succeeded in getting possession of the axe and said to the respondent, "You are under arrest for assault". The respondent thereupon seized a beer bottle and the appellant sought to take it from him but in doing so was thrown to the floor. As he tried to regain his feet the respondent seized a water jug, smashed it on a table and holding a shattered piece of it tried to jab it into the appellant's face. The appellant threw up his hand to protect his face and received a cut on the hand. The respondent was finally overpowered and taken to the police station. There two charges were laid against him, one of unlawfully assaulting the appellant whilst in the execution of his duty, an offence under s. 494 of the Crimes Act, the other of resisting the appellant in the execution of his duty, an offence under s. 59 of the Police Offences Act.