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Court of Criminal Appeal 21 May 2001

REGINA v O'NEILL

[2001] NSWCCA 193

Also reported as 122 A Crim R 510
Public order & justice offences
ARREST S33B CRIMES ACT 1900 RESISTING ARREST LAWFUL ARREST POLICE FORCIBLE ENTRY INTO PRIVATE HOME

Citation: Regina v O'Neill [2001] NSWCCA 193
Court: New South Wales Court of Criminal Appeal
Date: 21 May 2001
Judge(s): Mason P, Sully J, Dowd J

Background

Two police officers attended a private residence in Griffith to speak with the respondent, whom they intended to arrest for breaching bail and breaching an apprehended violence order. After repeated knocking and calls of "it's the Police, open the door, we need to speak to you," the respondent refused to open the door and yelled at the officers to leave. An officer then warned, "Open this door or I will open it," before the officers kicked down the door and forced entry.

Once inside, the respondent attacked the officers with a fire extinguisher, first by discharging its contents at them and then striking one officer on the head with the canister. He was charged under section 33B of the Crimes Act 1900 with using an offensive instrument to prevent his own lawful apprehension, and in the alternative with maliciously wounding a police officer.

The trial judge, Mahoney DCJ, directed the jury to return a verdict of acquittal on the section 33B charge, finding that the officers had failed to make a proper announcement of their intent to arrest before forcing entry. The Crown appealed that ruling to the Court of Criminal Appeal under section 5F(2) of the Criminal Appeal Act 1912.

  • Whether the Crown's appeal was properly brought as an interlocutory appeal under section 5F(2) of the Criminal Appeal Act 1912
  • Whether, at common law, police officers must make a "proper announcement" stating a lawful reason for entry before forcibly entering a private home to effect an arrest
  • Whether the officers' repeated statements that they needed "to speak with" the respondent constituted a sufficient announcement of their intent and reason for entry
  • Whether earlier circumstances, combined with the words actually used, could amount to an implicit expression of intent to arrest

Decision

The Court first confirmed it had jurisdiction to hear the appeal. The trial judge's ruling operated as a rejection of the Crown case on the relevant evidence, bringing it within the category of an interlocutory judgment or order for the purposes of section 5F(2).

On the substantive question, Mason P (with Sully and Dowd JJ agreeing) affirmed the longstanding common law rule that police officers commit a trespass by entering private property without authorisation. Except in exigent circumstances such as hot pursuit, a proper announcement stating a lawful reason for entry without permission must precede any forcible entry. The "cause" or "purpose" that the officer must announce is the basis for entering without the occupant's consent, not merely a request for a conversation.

The Court found the officers' announcements fell short of what the common law requires. Phrases such as "we need to speak to you" gave the respondent no basis on which he was legally required to comply. He was entitled to refuse that request, and the officers' failure to announce their intention to arrest him meant the forcible entry was not preceded by a proper announcement.

Mason P also addressed a point on which he respectfully disagreed with the trial judge. The judge appeared to suggest that even a proper announcement of intent to arrest would not have been sufficient to authorise the forced entry. Mason P disagreed with that view, holding that had such an announcement been made and been met with non-cooperation, breaking down the door would have been authorised. However, this observation did not alter the outcome: because no such announcement was made, the trial judge's ruling was correct and the appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • At common law, police officers must announce a lawful reason for entry, not merely a wish to speak with an occupant, before they may lawfully force their way into a private home to effect an arrest.
  • A request to "speak with" someone does not constitute a proper announcement: the occupant is entitled to refuse such a request, and a forced entry based on it is unlawful.
  • Where the entry is unlawful, the attempted apprehension is not "lawful" within the meaning of section 33B of the Crimes Act 1900, and a charge of using an offensive instrument to prevent lawful apprehension cannot be sustained.
  • Mason P confirmed that a clear announcement of intent to arrest, if made and then refused, would authorise forcible entry after a sufficient interval to infer non-cooperation, though this point was not necessary to the outcome.
  • Hot pursuit and other exigent circumstances may qualify the requirement for a proper announcement, though no such circumstances arose in this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 352
- Criminal Appeal Act 1912 (NSW), s 5F(2)

Cases
- Plenty v Dillon (1991) 171 CLR 635
- Lippl v Haines (1989) 18 NSWLR 620
- Eccles v Bourque (1974) 50 DLR(3d) 753
- Semayne's Case (1604) 5 Co Rep 91a; 77 ER 194
- Launock v Brown (1819) 2 B & Ald 592; 106 ER 482
- R v Briggs [1995] 1 NZLR 196
- Miller v United States 357 US 301 (1958)
- United States v Manning 448 F 2d 992 (1971)
- United States v Santana 427 US 38 (1976)
- R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
- R v Lissof [1999] NSWCCA 364