R v Doolan [2001] ACTSC 69 (13 June 2001)

Last Updated: 11 June 2002

R v DJAHN DOOLAN [2001] ACTSC 69 (13 June 2001)

CATCHWORDS

CRIMINAL LAW - trial by judge alone - charge of escape lawful custody - accused escaped arrest before being told why being arrested - requirement on police to inform why person arrested - entitlement of individual to resist arrest.

Crimes Act 1900 (ACT), ss 154, 359W(1), 349ZC(1)

Drugs of Dependence Act 1989 (ACT), s 124

Adams v Kennedy [2000] NSWCA 152, distinguished

No. SCC 82 of 2001

Judge: Madgwick J

Supreme Court of the ACT

Date: 13 June 2001

IN THE SUPREME COURT OF THE )

) No. SCC 82 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Crown

AND: DJAHN DOOLAN

Accused

ORDER

Judge: Madgwick J

Date: 13 June 2001

Place: Canberra

THE COURT FINDS THAT:

1. The accused is not guilty of the offence charged in the indictment, namely that on the 2^nd day of February 2001 at Canberra in the Australian Capital Territory he being in lawful custody in respect of an offence under a law of the Territory, escaped from that custody.

Background

1. In this matter, the Crown case shows that Constable Morgan was involved with the initial arrest of the accused on 6 April 2000 in relation, apparently, to matters including burglary, theft, assault police and assault occasioning actual bodily harm.

2. In consequence of this arrest and those charges, the accused appeared before this Court on 12 July 2000, when he was sentenced by Higgins J. It is common ground that his Honour sentenced the accused to 2 years imprisonment with a direction that he be released after serving so much of that sentence as expired on 12 January 2000, upon his entering into a conditional recognizance to be of good behaviour for a period of 4 years. Conditions imposed included that he obey the directions of the Director of the Australian Capital Territory Corrective Services or his or her nominee as to his place of residence, and that he comply with a treatment order which had been made on 30 June 2000, pursuant to s 123 of the Drugs of Dependence Act 1989 (ACT)

3. It was later made to appear to a magistrate of the Australian Capital Territory that the accused had failed to comply with the two conditions mentioned, and accordingly a magistrate issued a warrant authorising police officers to apprehend the accused and bring him before this Court to be further dealt with according to law.

4. On 2 February 2001, Constable Morgan and Constable Petropoulos saw the accused in Braddon. Constable Petropoulos stopped the accused who was in a telephone box and asked him to stay in it, which the accused declined to do. He stepped out of the phone box and away from Constable Petropoulos.

5. Constable Morgan then approached, took hold of the accused's arm and said "Djahn Doolan, you are under arrest". The accused had been eating a sausage roll and, upon Constable Morgan uttering those words, he threw the sausage roll into Constable Morgan's face. Constable Morgan lost but regained his hold of the accused who, without speaking, spun away, tearing his shirt which Constable Morgan was holding. He ran away and was not relocated until April 2001.

Offence charged

6. The accused is charged on indictment, pursuant to s 154 of the Crimes Act 1900 (ACT), that "being in lawful custody in respect of an offence under a law of the Territory" he escaped from that custody.

7. He is not charged in the alternative with the commission of any common law misdemeanour that may exist in the Australian Capital Territory of escaping from lawful custody.

8. Section 154 provides:

"A person who has been lawfully arrested, is in lawful custody, or is lawfully detained during pleasure, in respect of an offence under a law of the Territory, a State or another Territory and who escapes from that arrest, custody or detention is guilty of an offence punishable, on conviction, by imprisonment for 5 years or a fine of $10,000, or both."

Accused's case

9. Mr Everson, counsel for the accused submits that the accused was not "in lawful custody ... in respect of an offence under a law of the Territory". In support of this, the accused relies upon the evidence of Constable Morgan that, although he had suspicions that the accused had been involved in burglary offences committed on the day of the arrest and the day before, he knew of the existence of the warrant and the existence of the warrant was the reason why he arrested the accused.

10. Alternatively it is put that, although from the point of the view of the arresting officers the accused was lawfully in custody, from his own point of view he was not, because it was not made clear to him why he was being arrested and it is not shown that he must have known that there was at least one valid reason for his arrest.

Consideration

11. There is before the Court nothing to show that the accused was in fact involved in the burglaries and the existence of the warrant was not drawn to his attention. It is true that he must have known whether he had or had not complied with the conditions which were attached to his release upon recognizance, but there is no proof that he had contravened those conditions, nor was his alleged contravention of the conditions brought to his attention. The same is true of any offence that he may have committed under s 124 of the Drugs of Dependence Act which makes non-compliance with a treatment order an offence.

12. Finally, there may have been some offence involved in his initial pulling away from Constable Morgan, before Constable Morgan regained his grip. However, that would depend upon a knowledge on the part of the accused person that he was already lawfully in custody or lawfully under arrest. Lack of evidence of such knowledge does not advance the Crown's position in relation to the present charge.

13. The position of an arresting police officer and that of an arrested citizen is often one of some difficulty. One must start from the rights of the citizen. People are not to be deprived of their liberty except according to law.

14. In order that a citizen may assess his or her own right to resist an attempted arrest, or to escape from custody on the basis that it is not lawful, the citizen needs to have some knowledge of the basis of the arrest. So, in normal circumstances a citizen needs to be informed, not as a matter of nicety but as a matter of broad substance, of the reason for the arrest.

15. If an offender is caught red-handed in the commission of a crime, or in such circumstances that it can be inferred that it must have been perfectly plain to the person concerned why he or she is being arrested, then the requirement of proof of his or her knowledge of his or her position may be regarded as satisfied. Any such circumstance was absent in this case.

16. Counsel for the Director of Public Prosecutions argues that an arrested person who is able to escape before the reason for the arrest can be explained ought not be in a better position than somebody who submits quietly so that in due course the reason for the arrest can be explained.

17. From the viewpoint of the arresting police officers, this must be correct. If a police officer were sued for false imprisonment, it must be an answer to any complaint of lack of any indication by the officer of the reason for the arrest that the occasion for giving such explanation was denied to the police officer by the arrested person's own act. But we are not here considering an action against a police officer for false imprisonment or trespass against the person as was the case, for example, in Adams v Kennedy [2000] NSWCA 152, which endorsed Viscount Simonds' well-known exposition of the law in Christie v Leachinsky [1947] UKHL 2; [1947] AC 573.

18. From the viewpoint of the citizen, if a person has done no wrong and, conscious of that fact, declines to submit, even momentarily, to restraint, thereby denying the arresting police officer the opportunity to say whether or why the person is being arrested, then, so far as I can see, the person is within his or her rights and the momentary custody that existed is not thereby made lawful, so far as the citizen's potential criminal liability for escape from it is concerned. The evidence in this case does not negative the hypothesis that that is what occurred here.

19. So much is at least the case where, as here, the charge is one of escaping lawful custody. It is to be noted that s 154 expressly posits, as an alternative to a state of being lawfully in custody, a circumstance in which a person has been lawfully arrested; s 154 likewise creates an alternative offence of escaping from a lawful arrest. A person can in some circumstances be arrested upon reasonable belief, held by a police officer (s 349W(1)) or another person (s 349ZC(1)), of having committed an offence without having done so, and will be denied tortious relief if the person prevented the arrestor from indicating the basis of the arrest. It may well be that the alternative I have referred to was provided for in recognition of the difficulties that this case exposes for a charge of escaping lawful custody. However, as the accused has not been charged with escaping from a lawful arrest, that matter need not be pursued further.

Disposition

20. For these reasons, in my opinion, the accused should be acquitted. I find him not guilty.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Madgwick

Associate:

Date: 4 July 2001

Counsel for the Crown: P De Veau

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Accused: C M Everson

Solicitor for the Accused: Saunders & Co

Date of hearing: 13 June 2001

Date of judgment: 13 June 2001