R v Welch [2009] ACTSC 35 (6 April 2009)

Last Updated: 19 May 2009

HUMAN RIGHTS ACT

R v DAVID JOHN WELCH

[2009] ACTSC 35 (6 April 2009)

CRIMINAL LAW – Application for pre-trial ruling – escape lawful custody – right to resist arrest – requirement on police to inform why person arrested – lawful arrest not effected – warrant sought without sufficient justification – arrest rather than summons – legislative instrument within the meaning of s 43, Legislation Act (ACT) – authorisation to exclude warrant – resisting arrest or escape from lawful custody – authority of Deputy Registrar to issue warrants – grounds for seeking an arrest warrant – unlawful arrest

Legislation Act 2001 (ACT), ss 14, 43

Crimes Act 1900 (ACT), ss 185, 212, 219, 222

Magistrates Court Act 1930 (ACT), ss 42, 44

Human Rights Act 2004 (ACT), s 18

Evidence Act 1995 (Cth), s 138

Service and Execution of Process Act 1992 (Cth)

McIntosh v Webster (1980) 43 FLR 112

Donaldson v Broomby (1981) 54 FLR 66

R v Applebee (1995) 79 A Crim R 554

R v Singh [1999] ACTSC 28

R v Stankovich [2004] ACTSC 93; (2004) 149 A Crim R 88

R v Rees [2005] ACTSC 91

R v Khajehnoori [2005] ACTSC 76; (2005) 156 A Crim R 197

R v Caruso [2006] ACTSC 45

R v Doolan [2001] ACTSC 69

Taylor v Chief Constable of Thames Valley Police [2004] EWCA Civ 858; [2004] 3 All ER 503

No. SCC 147 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 6 April 2009

IN THE SUPREME COURT OF THE )

) No. SCC 147 of 2008

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

DAVID JOHN WELCH

ORDER

Judge: Higgins CJ

Date: 6 April 2009

Place: Canberra

THE COURT ORDERS THAT:

1. A lawful arrest had not been effected.

1. The accused, David John Welch, was, on 10 November 2008, arraigned on an indictment dated 14 May 2008, containing one count namely that:

... on the 5th day of November 2007, at Canberra in the Australian Capital Territory, [he] had been lawfully arrested in respect of an offence under a law of the Territory did escape from that arrest.

2. To that charge he has pleaded not guilty.

3. On 7 November 2008, Mr Sharman, on behalf of the accused, notified an application to “exclude” arrest warrant 07/1440 relating to the accused. This application was intended, on its face, to assert that the warrant was invalid and/or obtained without a proper basis so that the execution of it could not result in a lawful arrest.

4. The criminal offence in respect of which the warrant was sought was that the accused:

... on 9 October 2007 intentionally and unlawfully, used against another person, namely, Darren Rourke an offensive weapon, namely green coloured Mazda 323 bearing ACT registration plates YWC641, that was likely to case [sic] a person grievous bodily harm.

5. The background to that alleged offence is that, at about 12.45 pm on 9 October 2007, Mr Rourke was operating a ride-on lawnmower. An altercation occurred with an unidentified male person who, a short time later, drove the vehicle referred to in the indictment at Mr Rourke exclaiming, “You’re gonna die cunt!” It struck Mr Rourke on the left knee. He landed on his left shoulder on the bonnet of the car and rolled off. He had a graze wound to his left shin and a sore left shoulder as a result.

6. The vehicle was registered to the accused. Addresses linked to the accused were visited by police who were anxious to seize and examine the vehicle allegedly involved. It was intended by the investigating officer, Constable Quinn, to cause the accused to be subjected to a demand to provide information as to the driver of the Mazda at the time of the incident complained of by Mr Rourke.

7. On 11 October 2007, a request to contact police was left with the accused’s father. The latter advised police on 12 October 2007 that he had relayed that request to the accused. Later in the day, about noon, he advised that the accused would attend for interview at Belconnen Police Station at 2 pm.

8. The accused duly attended but, on legal advice, made no comment. He was, however, directed to provide information in writing about the identity of the driver of the Mazda at the time of the alleged offence within 48 hours. The accused did assert that the vehicle had been used by some “old people” and he could get the car back in a few days. He was asked to bring the vehicle in for examination.

9. No arrest was effected as the accused seemed co-operative and had not been, at that stage at least, positively identified by any of the eye witnesses.

10. The accused was, on 18 October 2007, contacted by Constable Byrne and requested to bring the Mazda in for examination by police at Belconnen Police Station. He was reminded that he had not responded to the request for information as to the driver made to him on 12 October 2007.

11. The accused responded that he would attend at Belconnen Police Station with his lawyer but not otherwise cooperate.

12. Accordingly, on 20 October 2007, police attended at the accused’s address to place the accused under arrest for “destruction of evidence and potential harassment of (sic) of witnesses”. As he was not there, a warrant was prepared.

13. On 25 October 2007, Constable Byrne swore an affidavit before Deputy Registrar of the ACT Magistrates Court and Justice of the Peace, Susan Catterson. The affidavit recited the grounds for suspicion that the accused had been the driver of the Mazda when it was allegedly used to endanger the life of Mr Rourke (referred to in the affidavit as “the victim”). The affidavit then recited that the accused, on legal advice, had declined to participate in a taped record of interview and that he had also, on legal advice, declined to provide details of the identity of the driver of the Mazda at the time of the incident.

14. Deputy Registrar Catterson then signed the subject warrant in the following terms:

Warrant in the first instance to apprehend a person charged with an offence Magistrates Court Act, s 30

In the Magistrates Court of the Australian Capital Territory

Case No: CC07/10625 File No: 125650

To: The Commissioner of Police at Canberra in the Australian Capital Territory, and to all other Police Officers in Australia.

Whereas an information has this day been sworn upon oath before the undersigned, Registrar of the Magistrates Court of the said Territory that,

THAT HE, IN THE AUSTRALIAN CAPITAL TERRITORY, ON 09 OCTOBER, 2007, INTENTIONALLY AND UNLAWFULLY, USED AGAINST ANOTHER PERSON, NAMELY, DARREN ROURKE AN OFFENSIVE WEAPON, NAMELY, GREEN COLOURED MAZDA 323 BEARING ACT REGISTRATION PLATES YWC641, THAT WAS LIKELY TO CASE [sic] A PERSON GRIEVOUS BODILY HARM.

These are therefore to command you, in Her Majesty’s name, forthwith to apprehend the said

DAVID JOHN WELCH DOB 13 April 1984 of 5 SKARDON, KALEEN, ACT 2617

and to bring him before a Magistrate of the said Territory to answer the said information, and be further dealt with according to the law.

Given under my hand, at Canberra, in the said Territory, this

25 day of October 2007

[S Catterson]

Deputy Registrar

15. On 5 November 2007, Constables Carpenter and Richardson attended on the accused’s address at Kaleen with a view to executing the arrest warrant.

16. Both officers, in police uniform, approached the front door of the residence. They knocked and the accused came to the door. He was informed that there was a warrant for his arrest. He said, “No, I’m not going with you.”.

17. He was seized by the arm and told he was under arrest. He began to struggle. Constable Carpenter warned him not to resist.

18. The accused said, “Fuck off, get the fuck off me”, broke free of Constable Carpenter’s grasp and ran back into the house. He ran into a rear bedroom. A female person blocked entry to the officers saying, “Get the fuck out of my house”.

19. The accused jumped out the window of the bedroom and climbed over the adjoining fence. He was pursued, caught and told to get onto the ground. He did so and was handcuffed.

20. Those are the facts alleged to constitute the escape. Mr Sharman, for the accused, first objected that the warrant was a “legislative instrument within the meaning of the Legislation Act 2001 (ACT) s 43”.

21. A further question was raised as to the legal authority for Ms Catterson to issue an arrest warrant.

22. It was further objected that the warrant invalidly purported to authorise all police officers throughout the Commonwealth to execute it, whereas the Act (s 44 Magistrates Court Act 1930) allowed a warrant to be directed no more widely than to “all police officers in the ACT”.

23. Mr Sharman submitted, the warrant itself was sought without sufficient justification.

24. This submission was founded on a proposition that the accused had not given sufficient reasonable cause to proceed by arrest rather than summons. Further, that the information on oath was deficient in not reflecting that.

25. On that issue, Constable Byrne gave evidence. She agreed that the accused had attended for interview concerning the alleged offence on 12 October 2007. On 18 October 2007 she spoke to him about providing the vehicle. He agreed to do so but did not. Further attempts at contact were unsuccessful. However, Constable Byrne agreed that she had been informed that Mr Sharman had advised the accused not to attend and not to surrender up the vehicle so that his conduct in those respects could be seen to be attributable to that advice.

26. Following that conversation it was Constable Byrne’s intention to have the accused placed under arrest. Her reasons for adopting that course, she said, included the difficulties she both experienced and foresaw in obtaining possession of the subject vehicle and in contacting the accused.

27. The two arresting officers conceded that neither had expressly stated to the accused before his arm was seized that the arrest warrant related to the allegation of the use of a motor vehicle to cause harm to a person, although Constable Carpenter said it was “possible” he had said that. Constable Richardson gave no such evidence. In my view, the initial concession represents the situation accurately.

28. Mr Thomas, for the Director of Public Prosecutions (DPP), submitted that the evidence was sufficient to support the offence charged. There was a question of whether the facts supported a charge of resisting arrest or of escaping from lawful custody. There was a relevant difference between Constables Richardson and Carpenter in that respect, though nothing turns on that difference for present purposes.

29. Constable Richardson reports that Constable Carpenter took hold of the accused by the arm and yelled:

David you’re under arrest. Come outside.

The accused yelled:

No, I’m not going with you.

And broke free.

30. Constable Carpenter says that at the screen door he said to the accused:

Okay then come here. You’re under arrest for a first instance warrant.

The accused said:

No, I’m not going with you.

Constable Carpenter replied:

You are under arrest.

31. He then took hold of the accused’s arm. The accused struggled, he said, “Don’t resist”. The accused said, “Fuck off, get the fuck off me” and broke free, leaving his jumper behind. He was then pursued and captured as outlined above.

32. The question of whether this evidence is sufficient for a prima facie case is raised by Mr Sharman. I deal with the issues raised.

Authority of Deputy Registrar Sue Catterson

33. This is easily disposed of. Section 219 Crimes Act 1900 (ACT) (Crimes Act) deals with the issue of warrants for the arrest of persons by an “issuing officer”:

Warrants for arrest

(1) An issuing officer shall not issue a warrant for the arrest of a person for an offence as a result of an information laid before the officer unless—

(a) the information is on oath; and

(b) subject to subsection (3), the informant has given the issuing officer an affidavit setting out the reasons why the warrant is sought, including the following reasons:

(i) the reasons why it is believed that the person committed the offence;

(ii) the reasons why it is claimed that proceedings by summons would not achieve 1 or more of the purposes set out in section 212 (1) (b);

(c) if the issuing officer has requested further information about the reasons for which the issue of the warrant is sought—that information has been provided to the officer; and

(d) the issuing officer is satisfied that there are reasonable grounds for the issue of the warrant.

(2) If the issuing officer issues a warrant, he or she shall write on the affidavit which of the reasons specified in the affidavit, and any other reasons, the officer has relied on as justifying the issue of the warrant.

(3) Subsection (1) (b) does not apply if the issuing officer is informed that the warrant is sought for the purpose of making a request for the extradition of a person from a foreign country.

(4) This section does not apply to the issue of a warrant under the Bail Act 1992, section 49 (1) (Failure to answer bail).

34. The purposes referred to in s 212(1)(b) are:

(1) ....

(b) proceedings by summons against the person would not achieve 1 or more of the following purposes:

(i) ensuring the appearance of the person before a court in respect of the offence;

(ii) preventing a repetition or continuation of the offence or the commission of another offence;

(iii) preventing the concealment, loss or destruction of evidence relating to the offence;

(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;

(v) preventing the fabrication of evidence in respect of the offence;

(vi) preserving the safety or welfare of the person.

35. Section 42 of the Magistrates Court Act 1930 (ACT) authorises a ‘magistrate’ to issue arrest warrants, though the magistrate may instead issue a summons if “appropriate”. It may be directed to “all police officers”.

36. The term “issuing officer” is defined in s 185 Crimes Act:

issuing officer, in relation to a warrant to search premises or a person or a warrant for arrest under this part, means—

(a) a judge, the registrar or a deputy registrar of the Supreme Court; or

(b) a magistrate; or

(c) if authorised by the Chief Magistrate to issue such search warrants or arrest warrants (as the case may be)—the registrar or a deputy registrar of the Magistrates Court.

37. Mr Thomas tendered an authority under the hand of the Chief Magistrate dated 20 September 2005. Mr Sharman concedes that this establishes Ms Catterson’s authority to issue the arrest warrant.

The decision to issue a warrant of arrest

38. There are two aspects Mr Sharman has canvassed.

39. First, is whether the applicant, Constable Byrne, properly disclosed all relevant information to enable Ms Catterson to consider the issues relevant to the issue of a warrant, namely, whether the issuing of a warrant was necessary to effect a purpose referred to in s 212(1)(b) Crimes Act and whether the circumstances were such as to render it necessary to issue such a warrant rather than proceeding by summons as provided for under s 42(3) Magistrates Court Act.

40. It is a significant question, particularly given the importance of the liberty of the subject, guaranteed as it is by s 18 of the Human Rights Act 2004 (ACT).

41. It is the case, also, that a police officer, deciding to arrest a person without warrant, must consider whether proceeding by summons would suffice. That requires a consideration of those same purposes. Clearly, it is only if one or more of those purposes would not be achieved if proceedings were commenced by summons that an arrest would be lawful. See McIntosh v Webster (1980) 43 FLR 112; Donaldson v Broomby (1981) 54 FLR 66.

42. The grounds relied upon by Constable Byrne and, presumably, accepted by Ms Catterson, were:

(i) She did not know the current whereabouts of the accused.

(ii) She feared the concealment, loss or destruction of evidence relating to the offence, and

(iii) She feared harassment or interference “towards witnesses” to the offence.

43. As to the first ground, she did not disclose the various addresses she knew of that the accused was known to frequent. However, as to the second, the accused had refused or failed to deliver up the vehicle in question for examination. There were no facts disclosed to justify the third ground.

44. The alleged victim and other witnesses had made statements to police. The vehicle was positively identified as the weapon used to hurt Mr Rourke. It was registered in the name of the accused as owner. The demand upon him, presumably to admit that he was the driver at the time of the alleged offence, had not been followed up.

45. The grounds relied on by the issuing officer in deciding to grant the warrant are required to be stated. Unfortunately, all that is stated as being the “reasons” for so doing is a reference to paras 2, 3 and 4 of the affidavit of Constable Byrne. I have already noted that those paragraphs do not support the grounds advanced by Constable Byrne for seeking an arrest warrant. Ms Catterson does not address those grounds. I do not know whether she accepted all or none of them or what, if any, of the purposes referred to in s 212(b) she considered would be effected by the arrest of the accused rather than proceeding by summons. Section 219(2) Crimes Act was therefore not complied with.

46. That proceeding by summons would not be effective because of lack of knowledge of the whereabouts of the accused is and was itself belied by the ease with which the accused was located for the purposes of executing the arrest warrant at his stated place of residence.

47. Thus I find the attempt to arrest the accused was unlawful. That is not merely because of the procedural defect by way of non compliance with s 219(2) Crimes Act but because of the substantive failure of Constable Byrne properly to disclose relevant information and the apparent failure of Ms Catterson to address the relevant questions as to why an arrest warrant should issue rather than a summons.

48. I note that s 219(4) Crimes Act would permit an arrest warrant to be issued if, for example, it appeared that the alleged offender was evading service of such a summons.

The Form of the Warrant

49. Section 44 Magistrates Court Act 1930 permits an arrest warrant, once validly issued, to “be directed either to any police officer by name or generally to all police officers within the Australian Capital Territory, without naming them or to both”.

50. This warrant, inexplicably, was addressed to “The Commissioner of Police at Canberra in the Australian Capital Territory, and to all other Police Officers in Australia”.

51. Undoubtedly, the Commissioner was unlikely even to be aware of the warrant.

52. In R v Applebee (1995) 79 A Crim R 554 a warrant to search and seize was directed to named police officers. An officer not so named not only searched but also seized an item. The case is, however, of little assistance here save to note that warrants authorise that which otherwise is unlawful and must be strictly adhered to. Further, in Applebee (supra), the issue then was the admissibility in evidence of the items seized. A discretion to exclude such evidence was raised by the illegality of the search.

53. But, as R v Singh [1999] ACTSC 28 illustrates, exceeding the scope of a warrant will not necessarily lead to exclusion of evidence seized in good faith.

54. In R v Stankovich [2004] ACTSC 93; (2004) 149 A Crim R 88, Spender J found that an officer not named in a search warrant had found and seized drugs exceeding the authority conferred by the warrant. His Honour observed that s 138(3) Evidence Act 1995 (Cth) would not mandate exclusion. However, the warrant was not so expressed as to authorise the search of a person thus the search and seizure was unlawful. In the exercise of his discretion, his Honour excluded the evidence so obtained.

55. However, the present warrant is not too narrowly expressed. It is too wide. Gray J in R v Rees [2005] ACTSC 91 found that the warrant in that case impermissibly authorised a search not only for things connected with a particular offence but also “anything else”. Could that offending phrase be severed? His Honour concluded that it could.

56. In R v Khajehnoori [2005] ACTSC 76; (2005) 156 A Crim R 197, Gyles J also held it was permissible so to do.

57. Gray J noted that under the Legislation Act s 14 a warrant is a statutory instrument for the purposes of s 13 thereof and should, pursuant to s 43, be read down so as not to exceed the power under which it was issued.

58. No doubt, pursuant to the Service and Execution of Process Act 1992 (Cth), an interstate warrant could be issued. However, that does not assist the prosecution in relation to this warrant.

59. Nevertheless, the warrant was executed by police officers in the Australian Capital Territory (ACT). They were included in the class of purportedly authorised officers. It seems to me that no injustice is done by reading down “in Australia” to “in the ACT”. Cf R v Caruso [2006] ACTSC 45.

60. The term “police officer” is not defined but, in context, means a member of the Australian Federal Police (AFP) having the powers of a constable in the ACT and would include a special constable. Exhibits 2 and 3, establish that, at the time of the purported arrest Gavin Richardson and Matthew Carpenter were AFP members.

61. The execution of the warrant does not fail by reason of this objection.

The manner of execution of the warrant.

62. It is apparent that the cause for arrest as made known to the accused was simply “a first instance warrant”. The presence of a warrant relieves arresting officers of the need to suspect that the person has committed an offence (otherwise, see s 212 Crimes Act). The term “first instance” is not particularly meaningful. It simply refers to an arrest warrant obtained ex parte from an issuing officer. There was nothing to prevent a statement being made conveying the information that the arresting police officers had what they believed to be a valid arrest warrant in respect of the offence it recited as the grounds for its issue.

63. The offence alleged to have been committed by the accused and recited in the warrant was not mentioned by either of the executing officers. They could easily have done so.

64. Section 222 Crimes Act provides:

Persons to be informed of grounds of arrest

(1) A person who arrests another person for an offence shall inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.

(2) It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.

(3) Subsection (1) does not apply to the arrest of the other person if—

(a) the other person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or

(b) the other person’s actions make it impracticable for the person making the arrest to inform the other person of the offence for which he or she is being arrested.

65. That also applies to an arrest otherwise than for an offence (see R v Doolan [2001] ACTSC 69). In that case, Madgwick J noted, at [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.

66. Of course, if an offender is caught red-handed, the reason for arrest and the offender’s knowledge of that reason will be apparent. Further, as s 222(3)(b) Crimes Act acknowledges, the actions of the person may render it impracticable to inform him or her of the substantive reason for the arrest, be it an alleged offence, a breach of bail or of a good behaviour order or otherwise.

67. There was no reason here why the arresting officers could not state the substance of the offence recited on the face of the warrant (see also Taylor v Chief Constable of Thames Valley Police [2004] EWCA Civ 858; [2004] 3 All ER 503).

68. It follows that, for this reason also, a lawful arrest had not been effected. I will hear the parties as to the consequences of this ruling.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 6 April 2009

Counsel for the Crown: Mr M Thomas

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Counsel for the Defendant: Mr T Sharman

Solicitor for the Defendant: Rachel Bird and Co

Date of hearing: 11 November 2008

Date of judgment: 6 April 2009