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Court of Criminal Appeal 2 September 2002

R v Merritt

[2002] NSWCCA 368

Public order & justice offences

Citation: Merritt v R [2002] NSWCCA 368
Court: Court of Criminal Appeal, New South Wales
Date: 2 September 2002
Judge(s): Beazley JA, Sully J, Simpson J

Background

Two police officers attended a caravan park in Ourimbah, New South Wales, to arrest the appellant on driving offences observed approximately two weeks earlier. The officers spoke to the appellant's sister at the doorway of the caravan, called out to the appellant to show himself, and were expressly told by a woman at the scene that they could not enter without a warrant. The officers entered the caravan anyway.

Once inside, the officers located the appellant in a curtained bedroom area and informed him he was under arrest for "a couple of driving matters." A confrontation followed. The appellant armed himself with a spear and threatened to stab both officers, who withdrew from the caravan. He was later arrested and taken to Gosford Police Station.

The appellant was convicted in the District Court of using an offensive weapon to prevent lawful arrest. He appealed against conviction on the basis that the arrest was not, in fact, lawful, because the police had failed to make a proper announcement before entering his caravan.

  • Whether the police officers lawfully entered the appellant's caravan before attempting to arrest him
  • Whether a proper announcement of the reason for entry was made prior to that entry, as required for a lawful forcible arrest on private premises
  • Whether the circumstances qualified as "exigent" so as to excuse compliance with the announcement requirement
  • Whether the caravan door being open meant the entry was not "forcible"

Decision

The Court of Criminal Appeal allowed the appeal. Simpson J, with whom Beazley JA and Sully J agreed, held that two conditions must be satisfied before police may forcibly enter private premises to arrest a suspect: there must be reasonable and probable grounds for believing the suspect is inside, and a proper announcement must be made before entry. The first condition was not in dispute. The second was not met.

The officers made no announcement of the reason for entry before crossing the threshold. It was only after they had entered that they mentioned "a couple of driving matters." Simpson J expressed the tentative view that even that reference might have been insufficient if stated beforehand, but in any event it came too late.

The Court rejected the Crown's argument that the circumstances were "exigent" so as to justify dispensing with prior announcement. The relevant offences had occurred two weeks earlier and there was no evidence the appellant was about to flee.

The Court also rejected the Crown's submission that the open caravan door meant there was no forcible entry. An open door does not confer authority or licence on anyone, including police, to enter against the occupant's will. Here, the appellant's girlfriend had expressly refused entry. The court confirmed that "forcible entry" does not require physical breaking or damage to premises. Entry against the wishes of the occupant is sufficient.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • Court directed entry of a verdict and judgment of acquittal

Key Takeaways

  • Before forcibly entering private premises to make an arrest, police must satisfy two conditions: reasonable and probable grounds to believe the suspect is inside, and a proper announcement of the reason for entry made before crossing the threshold.
  • A statement of purpose given only after entry has already been made cannot satisfy the announcement requirement, regardless of whether it might have been sufficient if given beforehand.
  • "Exigent circumstances" that might excuse prior announcement will not readily be established where the offences were committed weeks earlier and there is no evidence of imminent flight.
  • An open door does not amount to permission to enter. Where an occupant has expressly refused entry, any entry against that refusal constitutes a forcible entry for the purposes of the arrest power.
  • Because the attempted arrest was unlawful, the appellant's conviction for using an offensive weapon to prevent lawful arrest could not stand, and a verdict of acquittal was entered.

Legislation and Cases Referenced

Cases:
- Lippl v Haines (1989) 18 NSWLR 420
- The Queen v O'Neill [2001] NSWCCA 193; 122 A Crim R 510
- Plenty v Willow (1991) 171 CLR 635 (referenced in O'Neill)

Legislation: No specific legislation is cited in the provided text.