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District Court 17 July 2006

Appeal of Andrew Phillip Schofield

[2006] NSWDC 74

Assault & violence
CRIMINAL LAW CONVICTION APPEAL FROM LOCAL COURT STATE RAIL TRANSIT OFFICERS SOURCES OF POWER TO ARREST COMMON LAW POWER OF ARREST S352 CRIMES ACT POWER OF ARREST

Citation: Appeal of Andrew Phillip Schofield [2006] NSWDC 74
Court: District Court of New South Wales
Date: 17 July 2006
Judge(s): Nicholson SC DCJ

Background

The appellant was a senior transit officer working at Gosford Railway Station in the early hours of 12 March 2004. Two brothers arrived at the station intending to catch a train, both heavily intoxicated and each still carrying a bottle of alcohol. Their behaviour on the platform led to a confrontation with the appellant and other transit officers.

The incident ended with the appellant and colleagues physically removing both brothers from the station. Police, believing the transit officers had made lawful arrests, took the brothers into custody. The brothers then made complaints to police about how they had been handled.

The appellant was charged with two counts of common assault, one in respect of each brother. A Magistrate convicted him on both counts. He appealed to the District Court, which was required to review the evidence afresh and reach its own findings of fact.

  • Whether the physical handling of each brother constituted an unlawful assault
  • Whether the appellant's actions were justified as self-defence under s 418 of the Crimes Act 1900
  • Whether the appellant had a lawful power of arrest under s 352(1)(a) of the Crimes Act 1900, which permitted arrest for offences punishable on summary conviction under any Act
  • Whether a regulatory offence created under the Rail Safety (General) Regulation 2003 could found that arrest power, given that "Act" in s 352 did not extend to statutory instruments
  • Whether common law arrest powers were available to transit officers in the circumstances
  • Whether the physical removal of the brothers was authorised under cl 58 of the Railway Safety (General) Regulation 2003

Decision

Self-defence and the assault charges. The District Court found the prosecution had proved beyond reasonable doubt that the appellant assaulted Sebastian Whitbread. However, in relation to Christian Whitbread, the court accepted the appellant's self-defence claim. The court found the appellant believed his conduct was necessary given Christian Whitbread's escalating acts and movements, and that his response was reasonable in the circumstances as he perceived them. The prosecution therefore failed to negate self-defence on that count.

Arrest powers under s 352(1)(a). The court closely examined whether transit officers held a valid power of arrest. Under s 352(1)(a) of the Crimes Act 1900 (since repealed as of 1 December 2005), a person could arrest without warrant someone committing, or immediately after committing, an offence punishable on summary conviction "under any Act." The court held, by reference to the Interpretation Act 1987, that the term "Act" did not extend to statutory instruments such as the Rail Safety (General) Regulation 2003. A regulatory offence under that instrument could not therefore ground the arrest power in s 352(1)(a).

The argument that regulations derive from the parent Act. The appellant's counsel argued that because the Rail Safety Act 2002 authorised the making of regulations that created offences, those offences were effectively offences "under" the Rail Safety Act and therefore captured by s 352(1)(a). The court addressed the mechanism by which punishment is determined: because the maximum penalty for the relevant offences was five penalty units, the offender would be a summary offender under s 6(c) of the Criminal Procedure Act 1986. Even so, the court's analysis left no clear basis for a valid arrest by transit officers for breaches of the regulation.

Common law arrest powers. The court noted that common law arrest powers are limited to treason, felony, or breach of the peace. Transit officers are not constables or special constables, and the court found no other available power of arrest applicable on the facts before it. Following the finding of guilt in respect of Sebastian Whitbread, the court exercised its discretion to grant a s 10 discharge under the Crimes (Sentencing Procedure) Act 1999, noting the appellant's 30-year career in a difficult and dangerous role, concluding that the assault on that night was entirely out of character and a serious error of judgment.

Orders Made

  • The conviction recorded by the Magistrate in respect of Christian Whitbread was quashed.
  • The finding of guilt recorded by the Magistrate in respect of Sebastian Whitbread was confirmed, but the conviction was quashed.
  • Pursuant to s 10 of the Crimes (Sentencing Procedure) Act, the appellant was discharged without conviction.

Key Takeaways

  • The District Court held that the term "Act" in s 352(1)(a) of the Crimes Act 1900 did not encompass statutory instruments, meaning a transit officer could not rely on that provision to arrest a person for a breach of a regulation such as the Rail Safety (General) Regulation 2003.
  • Common law arrest powers available to ordinary citizens are confined to treason, felony, and breach of the peace; transit officers, not being constables or special constables, could not draw on any broader power at the relevant time.
  • A finding of guilt does not preclude a s 10 discharge under the Crimes (Sentencing Procedure) Act; the court may still discharge an offender without conviction where the circumstances, character, and record of the person warrant it.
  • Where self-defence is raised, the prosecution bears the burden of negating it beyond reasonable doubt; on the facts here, the prosecution failed to discharge that burden in relation to one of the two assault counts.
  • Sufficient evidence existed on the other count for the court to confirm the finding of guilt, notwithstanding that the conviction itself was ultimately quashed by way of the s 10 order.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 352(1)(a), 418
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Criminal Procedure Act 1986 (NSW), s 6
- Interpretation Act 1987 (NSW), ss 20, 65, 67
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 100
- Rail Safety Act 2002 (NSW), s 95
- Railway Safety (General) Regulation 2003 (NSW), cl 58 (also referenced as cl 18–39 in catchwords)

Cases cited: No specific cases were cited in the portions of the judgment provided.