Michaels v The Queen [1995] HCA 8

High Court of Australia Brennan, Deane, Toohey, Gaudron and McHugh JJ Michaels v The Queen [1995] HCA 8

ORDER Appeal dismissed

Cur adv vult

The following written judgments were delivered:—

16 August 1995 Brennan, Deane, Toohey and McHugh JJ.

The appellant was convicted of escaping from lawful custody in breach of s 47 of the Crimes Act 1914 Cth. His appeal to the Court of Criminal Appeal of New South Wales was dismissed [1] ; he now appeals to this Court.

1. R v Michaels (1993) 70 A Crim R 78.

At the relevant time s 47 read [2] :

A person who has been lawfully arrested, is in lawful custody, or is lawfully detained during the Governor-General's pleasure, in respect of any offence against a law of the Commonwealth or of a Territory and who escapes from that arrest, custody or detention is guilty of an offence.

Penalty: Imprisonment for 5 years.

While questions arise concerning the appellant's arrest, the principal issue before the Court is whether the appellant was in lawful custody at the time he escaped. 1. Section 47 was amended by s 15 of the Crimes and Other Legislation Amendment Act 1994 Cth.

The facts

On 22 November 1989 Australian Federal Police officers went to the appellant's place of employment. There were five officers. One remained outside and the others, under the command of Det Sergeant Wilson, went into the building. The police were investigating the importation of cocaine which had been impregnated into hammocks and they wanted to question the appellant about that matter.

Detective Wilson asked the appellant some questions about the hammocks, then asked him if he was willing to accompany the officers to police headquarters with a view to asking him further questions there. The appellant said he was prepared to go with the officers. According to Wilson, the appellant was not then under arrest though he had no doubt that, if the appellant had indicated he would not answer questions, he would have arrested the appellant for a breach of the Customs Act 1901 Cth "there and then".