Greenslade v R [2012] NSWDC 255

District Court New South Wales

Medium Neutral Citation: Greenslade v R [2012] NSWDC 255 Hearing dates: 5 December 2012 Decision date: 05 December 2012 Before: Neilson DCJ Decision: Conviction recorded and sentence passed by Downing Centre Local Court on 12 July 2012 set aside. The charge of resisting arrest is dismissed. Catchwords: CRIMINAL LAW - Police powers - Whether arrest was lawful - Arrest must be for purpose of taking person before a court to answer a charge Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 s 99(3) Cases Cited: Daemar v Corporate Affairs Commission [1990] NSWCA 51 DPP v CAD & Ors [2003] NSWSC 196 DPP v Carr [2002] NSWSC 194 Dungay v R [2001] NSWCCA 443 Fleet v District Court of New South Wales [1999] NSWCA 363 McLiney v Minister [1911] VLR 347 R v Ryan (1890) 11 NSWR 171 Williams v R (1986) 161 CLR 278 Category: Principal judgment Parties: Regina (Crown) Susan Joanna Greenslade (Appellant) Representation: Ms J Turner (Crown) Mr T Jones (Appellant) File Number(s): 2012/086323

Judgment 1This is an appeal against a conviction recorded and a sentenced passed by Acting Magistrate Moore sitting in the Downing Centre Local Court on 12 July 2012. The appellant was charged with two offences. The first offence was that between 2.15am and 2.30am on 18 March 2012 at Marrickville she did assault Bronwyn Mathieson. The second charge was that between 4.15am and 4.25am on 18 March 2012 at Marrickville she did resist Michael Hack, he being a constable of police executing his duty. 2At about 3am on 18 March 2012, Constable Hack obtained a complaint from Bronwyn Mathieson that Ms Mathieson had been assaulted by her flatmate, the current appellant, earlier on that morning. That complaint was received at the home of a friend of Ms Mathieson, in Livingstone Road, Marrickville, to which she had resorted prior to making a telephone call which caused Constable Hack to attend upon her about 3am. 3Constable Hack took Ms Mathieson to the Marrickville police station and obtained a statement from her. Constable Hack then attended the property at 13 Gladstone Street, Marrickville at which the appellant resided and which was the normal place of abode of Ms Mathieson. According to the evidence of Constable Hack, he arrived at the premises at 4.15am. He was in company with Constable Davies, a female constable, and Probationary Constable Schmidt, who is male. 4The appellant had been asleep in bed. She gave evidence that she retired to her bed at about 3.15am. She was wearing a blue and white short kimono style dressing gown, which was tied at the front around the waist. She was not wearing any other clothing. She was awoken by a flashing blue light outside her house. Although the blinds to her bedroom were drawn, the blue flashing light pierced into her bedroom, causing her to wake up. In addition, she thought she saw torches being shone through the window of her room, although there appears to be some factual dispute about that. 5In any event, there is no dispute that Constable Hack knocked at the front door of the appellant's house and that she answered that knock by opening the door to the Constable. It is clear that he was then in company with both Constable Davies and Probationary Constable Schmidt. According to the Constable, he asked the appellant, "Are you Susan?". His evidence was that she replied, "Who wants to know?". The Constable said that he then said, "I'm here about the incident earlier with your flatmate." He went on to point out that he had identified his office and that he was from the Marrickville police. He then advised the appellant that she was under arrest for assault and he gave her a formal caution. According to the Constable, the appellant replied, "Who are the witnesses?", which caused him again to issue a formal caution. 6He then said that the appellant turned around and walked back into the house, into the living room. He followed her and again pointed out to her that she was under arrest. He then grabbed her right forearm with both his hands. She pulled free of his grip by making a backward swinging motion with her right arm. She eluded his grasp. He then again grabbed her by her right forearm and again advised her that she was under arrest. Again, the appellant sought to pull free of his grip. However, he held on more tightly on this occasion and she could not pull free of the second grip. According to the Constable, both the appellant and he lost their balance and fell over on to a nearby lounge. 7According to the appellant, he fell down the side of the appellant on her right. It was subsequently suggested to him that he may have fallen on her back and he conceded that that may have occurred and that he would then have slid off the appellant's back to her right side. The appellant's left arm was underneath her body, that is, pressed between her body and the lounge. She was asked to put her left arm behind her but made no movement to do so. 8Probationary Constable Schmidt then came to the assistance of Constable Hack and, after making a number of repeated attempts at pulling on the appellant's left arm, pulled it out from underneath her body and put it behind her back and applied handcuffs. She was then taken, dressed as she was, scantily, to the Marrickville police station. 9The interaction between the appellant and Constable Hack led to the second charge. I hasten to add that I have relied mainly, for dealing with this appeal, on the evidence of Constable Hack rather than the evidence of the appellant. There are factual inconsistencies but they were not adequately determined by the Magistrate. 10As far as the charge of assault was concerned there were two accounts, that of Ms Mathieson and that of the appellant. According to the appellant, it was Ms Mathieson who attacked her and the appellant only sought to defend herself. His Honour dismissed the charge of common assault. At p 84, line 18 of the transcript his Honour said this: "I am not in a position to say who was the aggressor at that point in time and the matter is dismissed." 11In other words, it appears to have been the case that the magistrate could not determine, even on the balance of probabilities, as to who commenced the interaction between the appellant and Ms Mathieson. So, in circumstances where he could hardly be satisfied that the Crown could prove common assault against the appellant beyond reasonable doubt, his Honour then turned to the question of the charge of resisting arrest. The first two paragraphs of his reasons are these: "In respect to the resist, [it] was as I have already indicated, the case where Constable Hack and his two colleagues attended upon the premises, Constable Hack says with a view to arresting Ms Greenslade. After listening carefully to Constable Hack I am of the view that he does not totally understand the concept of arrest. There is more than one concept of arrest and the first of course is to detain a person in order that they cannot leave the company of an officer in order that they can make further enquiries. After listening to Constable Hack I am of the view that that is the reason he first attended and that is the concept of arrest that initially is utilised rather than arrest for the purposes of charging." 12With the utmost respect to the Magistrate, I know of only once concept of arrest at law. Of course, as an ordinary English word, "arrest" just means, "to stop". I can arrest my progress in order to speak to somebody I see walking in the opposite direction, with whom I wish to speak. He can speak of his progress being arrested by my arresting myself. However, in law there is only one concept of arrest. I will turn shortly to it. It is on the leaned Magistrate's first concept of arrest that he convicted the appellant and fined her $300 and ordered her to pay court costs of $83. 13Perhaps a convenient starting point is the decision of the High Court of Australia in Williams v R (1986) 161 CLR 278, in particular in the joint judgment of Mason and Brennan JJ as their Honours then were. Commencing at [8], their Honours considered earlier decisions under Federal Law. Commencing at [11], their Honours considered the law of New South Wales. Subsequently, at [13], their Honours discussed the law of Victoria and, commencing at [16], they considered the law in South Australia and then, commencing at [18], they considered the then state of English law. 14The relevant considerations are those under Federal Law and under the law of this State. Their Honours said this: "8. That proposition [that the relevant section did not require a police officer to bring an accused person before a Justice of the Peace before the police officer had had a reasonable opportunity to question the arrested person] is contrary to principle and is inconsistent with the unanimous judgment of this court in R v Iorlano (1983) 151 CLR 678. In that case, the statute which authorized detention of an arrested person was s 212 of the Customs Act 1901 (Cth). It provides: 'Every person arrested may be detained until such time as he can without undue delay be taken before a Justice'. In Iorlano, the Court said (at p 680): 'It is unnecessary for present purposes to decide whether s 212 is intended to give a wider power to detain an arrested person than that which exists at common law. There is simply nothing in the provisions of s 212, or in the context in which that section appears, that suggests that the fact that the arresting officer desires to question the arrested person affords any legitimate reason for delay in taking him before a justice. The section gives no power to question an arrested person, and does not make justifiable a delay which resulted only from the fact that the arresting officer wished to engage in questioning.' The Court's statement of the principle does not depend on the particular language of s 212 of the Customs Act nor on the particular character of the officer who might be exercising the power to detain the person arrested. The principle is of general application to all statutory powers to detain a person after arrest for an offence although it can, of course, be excluded by statute. 9. The right to personal liberty is as Fullagar J described it, "the most elementary and important of all common law rights" (Trobridge v Hardy (1955) 94 CLR 147, at p 152). Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the Laws of England "without sufficient cause" (Commentaries of the Laws of England (Oxford 1765), Bk 1, pp 120-121, 130-131). He warned: 'Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whom ever he or his officers thought proper ... there would soon be an end of all other rights and immunities.' That warning has been recently echoed. In Cleland v R (1982) 151 CLR 1, at p 26, Deane J said: 'It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.' The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested. 10. The common law conferred on constables a power to arrest without warrant on suspicion of felony, but the authority to keep the person arrested in custody was limited "till he can be brought before a justice of the peace" (Comyns' Digest, vol IV, "Imprisonment" (H4)). The time could not be extended to allow for the collection of witnesses: see Wright v Court (1825) 107 ER 1182, where it was said: 'it is the duty of a person arresting any one on suspicion of felony to take him before a justice as soon as he reasonably can, and the law gives no authority even to a justice to detain a person suspected, but for the reasonable time till he may be examined.' 11. A statutory power, applicable in respect of statutory offences as well as in respect of felonies, was created in New South Wales by s 352 of the Crimes Act. That section required the arresting constable to take the person arrested "before a Justice to be dealt with according to law". In Bales v Parmeter (1935) 35 SR (NSW) 182, Jordan CJ observed (at p 189) that - 'The statute, like the common law, authorises him only to take the person so arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct route: Clarke v Bailey (33 SR 303). Any detention which is reasonably necessary until a magistrate can be obtained is, of course, lawful, but detention which extends beyond this cannot be justified under the common law or statutory power. Thus, it has been held that if in the course of an arrest which is otherwise for a lawful purpose, the arresting constable takes the arrested person to some place to which it would not be reasonable and proper to take him in the course of bringing him before a magistrate, for the purpose of searching him there, the detention in that place and the search are unauthorised and therefore actionable...' His Honour spelt out the limitation on the police officer's authority to keep a person in custody for the purpose of interrogation. He said (at p 190): 'If a person has been arrested, and is in process of being brought before a magistrate questioning within limits is regarded as proper in New South Wales ...; but a police officer has no more authority to restrain the liberty of a suspected person for the purpose, not of taking him before a magistrate, but of interrogating him, than he has of restraining the liberty of a person who may be supposed to be capable of supplying information as a witness.' His Honour speaks not of authority to arrest but of "authority to restrain the liberty" of the person in custody. The purpose of interrogation is not only insufficient to warrant an arrest; it is insufficient to warrant the retention of the arrested person in the custody of the arresting officer. The authority of Bales v Parmeter led Maxwell J to say in Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146, at p 147: 'It is now thoroughly well established that arrest and imprisonment cannot be justified merely for the purpose of questioning...' 12. In R v Bathgate (1944) 46 SR (NSW) 281, the Court of Criminal Appeal held to be unlawful the detention for questioning of a person lawfully arrested when the person arrested could have been brought before a magistrate. In R v Jeffries (1946) 47 SR (NSW) 284, at p 288, Jordan CJ, after reiterating the rule laid down in the New South Wales cases, condemned in strong terms the taking of arrested persons not to a magistrate to be charged but to a police station to be questioned in the hope of extracting something that can be used in evidence against them." 15In Williams v R the following pithy statement is made in the joint judgment of Wilson & Dawson JJ at [8]: "It is beyond question that at common law no person has power to arrest a person merely for the purpose of questioning him: Beckwirth v Philby (1827) 108 ER 585; Mathews v Biddulph (1841) 133 ER 1195; Hadley v Perks (1866) 1 QB 444; Nolan v Clifford (1904) 1 CLR 429; Walters v W.H. Smith & Son, Limited (1914) 1 KB 595; Christie v Leachinsky (1947) AC 573." That remained the law after amendments were made to the Crimes Act allowing detention after arrest for the purpose of investigation: Dungay v R [2001] NSW CCA 443. 16The provisions of the Crimes Act and certain other provisions are now contained in Law Enforcement (Powers and Responsibilities) Act 2002. The relevant powers of arrest for members of the police force are contained in s 99. The powers of arrest for members of the public are contained in s 100. Commencing at s 114 are certain provisions allowing detention after arrest for the purposes of investigation. However, there is nothing in those provisions that is inconsistent with the prior law. In fact those provisions are completely consistent with it. It is to be borne in mind that in the Second Reading Speech in the Legislative Assembly of this State the then Attorney General said, on 17 September 2002: "Part 8 of the Bill substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law. The provisions of Part 8 reflect that arrest is a measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person's attendance at Court. Clause 99, for example, clarifies that a police officer should not make an arrest unless it achieves specified purposes, such as preventing the continuance of the offence. Failure to comply with this clause would not, of itself, invalidate the charge. Clauses 107 and 108 make it clear that nothing in the Part affects the power of a police officer to exercise the discretion to commence proceedings for an offence other than by arresting the person, for example, by way of caution, or summons, or another alternative to arrest. Arrest is a measure of last resort. The Part clarifies that police have the power to discontinue arrest at any time." 17Section 99(3) is in the following terms: "A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of a person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person." 18I should point out that the use of the definite article in paragraph (f) clearly refers back to the same word used with the indefinite article in the first line of the subsection, namely, "a person" to whom the police officer must not arrest; that is, paragraph (f) is designed to preserve the safety and person of the suspect. 19It is clear also from the terms of s 114 that the detention after arrest for the purposes of investigation is only after a person has been arrested, and that must be interpreted as being lawfully arrested. 20The issue here was whether the appellant was lawfully arrested. The evidence in that regard is crystal clear. In cross-examination Constable Hack agreed he was accompanied by two other police officers. One of them was female, in order that she might carry out a search, presumably of the appellant's person. The next question and answer are these: "Q. So had you already made the decision to arrest [Ms Greenslade?] A. Yes." At p 11 commencing at line 31, the following questions and answers were given: "Q. And that's why you had a female police officer there and had you turned your mind to another to have Ms Greenslade attend at court? A. Well at that stage she was only going to be under arrest, not charged. Q. It was only going to be an arrest and she wasn't going to be charged? A. Not at that stage. She was going to be taken back, given a chance to tell her side of the story-- Q. So you-- A. --and from that, from that, make a determination as to what was going to happen. Q. So you arrested her for the purpose of further enquiries? A. Yes." 21In re-examination Constable Hack was asked whether there were any other reasons for arresting Ms Greenslade. He gave two. They were these: "To ensure protection of the victim and to apply for an apprehended violence order." 22Of the three reasons advanced, none was for the purpose of taking the appellant before the Local Court for her to answer any charge. There is no power at common law or under statute to arrest merely for the purpose of interrogation. There is no power at common law or under statute to arrest a person merely to protect somebody else. There is no power, either at common law or under statute, to arrest a person merely so that one can commence proceedings for obtaining a domestic violence order. The arrest was unlawful. 23In this State it was laid down 122 years ago that, although a person exercising a lawful power of arrest is entitled to use reasonable force if necessary to effect the arrest, there is a corresponding right to use reasonable force to resist unlawful arrest: Ryan (1890) 11 NSWR 171. There is Victorian authority to the same effect: McLiney v Minster [1911] VLR 347. Accordingly, when Constable Hack assaulted the appellant by grabbing hold of her right forearm with his two hands, the appellant was entitled to seek to escape from his grasp. She did so the first time successfully. She did not do so the second time successfully. That caused both her and Constable Hack to fall onto the couch in the living room but the appellant was entitled to seek to escape from the unlawful arrest in which Constable Hack was seeking to restrain her. 24The learned Magistrate clearly erred in law in holding that Constable Hack lawfully arrested the appellant when he told her that she was under arrest; an arrest which he purported to carry out merely for the purposes of interrogation, or perhaps for the protection of Ms Mathieson, or perhaps for the taking out of an ADVO. That is sufficient to deal with the current matter. However, I should add, for the benefit of the police, that even if the arrest had been lawful there were insufficient grounds in my view to justify taking such an extreme measure. 25Fleet v District Court of New South Wales [1999] NSWCA 363 concerned, inter alia, a German Shepherd dog known as Jason. Jason was kept at premises owned by Mr Fleet. On 5 March 1997 the dog was removed from those premises, being sick and emaciated. Mr Fleet was not present at the time. Police officers and some media photographers had let themselves onto Mr Fleet's premises. The dog was removed by an RSPCA officer and taken to the dog pound at Yagoona. The dog was euthanaised on 6 March 1997. Certain events occurred in May 1997 and July 1997 resulting, it would seem, from some pursuit of Mr Fleet by the media and the RSPCA. 26On 6 August 1997 Mr Fleet was arrested by two officers because he failed to provide to them his name and address when required to do so pursuant to s 27A of the Prevention of Cruelty to Animals Act 1979. 27He was handcuffed, removed to the police station, and then charged with having committed an act of aggravated cruelty to an animal under s 6 of the Prevention of Cruelty to Animals Act 1979. The Court of Appeal, Mason P, Priestley and Handley JJA said: "73. Lawfulness of arrest is one thing, appropriateness is another. Nevertheless, it is difficult to understand how it could have been thought appropriate to exercise any available power to arrest in the present circumstances, where Mr Dymond and the third opponent knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing. Deane J pointed out in Donaldson v Broomby (1982) 60 FLR 124 at 126 that: 'Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practise of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual to be strictly confined, plainly stated and readily ascertainable'. 74. There have been many judicial statements about the inappropriateness of resort to the power of arrest (by warrant or otherwise) when the issue and service of a summons would suffice adequately ... Some are in a legal context that differs from the present ... Nevertheless, it remains appropriate that those vested with extraordinary powers of arrest should be reminded of the need to consider whether they should be exercised in a particular case. The arrest in this case seems to have an element of the arbitrary about it, which brings to mind the tyranny Deane J warned against. Such cases are harmful to the free society we all want to preserve." 28Similar comments were made by Meagher JA in Daemar v Corporate Affairs Commission [1990] NSWCA 51. His Honour said this: "These appeals add two more chapters to the saga of the hapless Mr Daemar's entanglements with the law. In 1983 a Mr Crellin laid an information before a Mr Sandilands, a Justice, who authorised the issue of a warrant for the arrest of Mr Daemar. The charge against him, purportedly under s 178B and s 351 of the Crimes Act, was that he aided and abetted the commission of a misdemeanour by a company called Quik Foods Pty Limited which obtained chattels from another company by passing to it a cheque which was not met on presentation. On the facts, the charge was entirely misconceived as property in the chattels had passed before the cheque was handed over. More than that, Mr Daemar should never have been arrested. At most the Justice should have issued a summons and not a warrant for arrest. As Goddard LJ said (with the concurrence of Luxmoore LJ) in Dumbell v Roberts (1944) 1 All ER 326 at 332: 'In giving this power of arrest parliament obviously contemplated that it was only to be used if it was necessary to ensure the suspect being brought before the court. If his name and address could be ascertained the police could proceed by summons, which is the proper course to take in the case of misdemeanours or summary offences unless, where there is a power to arrest, there is reason to believe a summons would not be effectual'." 29Similar observations fell from Smart AJ in DPP v Carr [2002] NSWSC 194, where his Honour said: "35. This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him [sic] departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded." 30In that case his Honour indicated that the initial decision to arrest the respondent was born out of expediency by the police. His Honour pointed out that it had been open to the magistrate in the Local Court to make a finding of this nature: "Thus the evidence is that at the time of the arrest officers intention was to arrest a drunk, hostile, aggressive, swearing man, take him by force to the vehicle and issue him with a roadside field court attendance notice. A process not requiring immediate arrest was not chosen because it was 'far quicker' to arrest the man and then issue a field court attendance notice." Similar statements were made by Barr J in DPP v CAD & Ors [2003] NSWSC 196, where those who had been arrested were children and had been dragged 700 metres to a police station by the arresting police. 31Here, Constable Hack knew the name of the appellant and he knew her address. Enquiry made of the complainant would have established that the appellant was a mature, middle-aged lady. At the time in question she was forty-nine years old. If enquiries had been made by Constable Hack, he could have ascertained that she had no criminal record. The exercise of common sense would indicate that at about 4.15am nearly every citizen of this city would have been well asleep in bed and would be scantily clothed because even in March the weather can still be hot. The fact that he took with him two other constables of police, one for the purpose of conducting a search, indicates, in my view, gross over-reaction. 32The only thing that concerned me was that there had been an allegation, essentially by Ms Mathieson, of assault occasioning actual bodily harm upon her at a place where she normally lived, as did the appellant. 33There might be some anxiety as to whether there might be any further interaction between Ms Mathieson and the appellant. However, Constable Hack could easily have dealt with that by knocking on the appellant's door perhaps at a later hour such as 6 or 6.30am and handing her a field Court Attendance Notice and an interim apprehended domestic violence order, which would clearly have drawn the seriousness of matters to the attention of the appellant and caused her not to have any further interaction with Ms Mathieson until the matter could be dealt with at Court. 34Not only was the arrest illegal, in my view it was also wholly inappropriate. 35For those reasons I set aside the conviction recorded and the sentence passed by the Downing Centre Local Court on 12 July 2012. I direct that the charge of resisting arrest offered to the appellant, being offence H46539910, sequence 002 to be dismissed.