REGINA v O'NEILL [2001] NSWCCA 193

Reported Decision : 122 A Crim R 510

New South Wales Court of Criminal Appeal

CITATION : REGINA v O'NEILL [2001] NSWCCA 193 FILE NUMBER(S) : CCA 60150/01 HEARING DATE(S) : 3 May 2001 JUDGMENT DATE : 21 May 2001

PARTIES : REGINA v Leslie William O'NEILL JUDGMENT OF : Mason P at 1; Sully J at 33; Dowd J at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/71/0047 LOWER COURT JUDICIAL Mahoney DCJ OFFICER :

COUNSEL : Crown: P G Berman SC Respondent: P Strickland SOLICITORS : Crown: S E O'Connor Respondent: Cater & Blumer CATCHWORDS : Arrest - s33B Crimes Act 1900 - resisting arrest - lawful arrest - police - forcible entry into private home - "proper announcement" - lawful reason for entry without permission - whether circumstances amounted to implicit expression of intent to arrest - Crown appeal under s5F(2) Criminal Appeal Act 1912 - appeal dismissed. DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA 60150/01 MASON P SULLY J DOWD J Monday 21 May 2001

REGINA v Leslie W O'NEILL Two police officers forcibly entered the respondent's home and placed him under arrest for breaching bail and breach of an apprehended violence order. The respondent sprayed the two officers with the contents of a fire extinguisher. The first of two counts charged against the respondent was based on s33B of the Crimes Act 1900, using "an offensive instrument...with intent to…prevent …the lawful apprehension of himself". The issue in this case was whether the forcible entry into the respondent's home was preceded with the formalities the common law requires in order for the attempted arrest to be "lawful" within the meaning of s33B. On the day in question, the police officers knocked on the door of the respondent's house and repeated numerous times "Leslie, it's the Police. Open the door, we need to speak to you". There was no reply, although footsteps and other noises could be heard from inside the house. This request was repeated through an open window, and again at the front door. The officers left for a short time, and returned, saying, "Leslie O'Neill, it's the police. Open this door. We need to speak with you." This was repeated a few more times, and met with yelling from the respondent behind the door. He yelled, "get fucked. Leave me alone. I'm not opening this door." One of the officers replied, "Leslie, this is the police. Open this door or I will open it." The respondent continued to yell. Shortly after this, the officers kicked down the door and entered the house. The respondent attacked them with the fire extinguisher, striking one of the officers on the head with the canister once its contents were exhausted. Judge Mahoney QC held that due to the officers' failure to make a "proper announcement" of intention to arrest before the forcible entry, the respondent was entitled to a verdict of acquittal by direction. This is an appeal from that judgment.