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District Court 5 December 2012

Greenslade v R

[2012] NSWDC 255

Public order & justice offences
CRIMINAL LAW POLICE POWERS WHETHER ARREST WAS LAWFUL

Citation: Greenslade v R [2012] NSWDC 255
Court: District Court of New South Wales
Date: 5 December 2012
Judge: Neilson DCJ

Background

The appellant was a 49-year-old woman charged with two offences arising from events in the early hours of 18 March 2012. The first charge, common assault of her flatmate, was dismissed by the Local Court magistrate. The second charge, resisting arrest, resulted in a conviction, a $300 fine, and a costs order of $83.

The arrest arose after police attended the appellant's home in Marrickville at approximately 4.15am, acting on a complaint from her flatmate that she had been assaulted earlier that morning. Constable Hack, accompanied by two other officers, knocked on the appellant's door. She answered in a short dressing gown and no other clothing, having been woken from sleep. When the constable grabbed her forearm and she pulled free, a physical struggle ensued that led to her being handcuffed and taken to the police station.

The appellant appealed her conviction for resisting arrest to the District Court. The central issue was whether the arrest itself had been lawful.

  • Whether there is more than one legal concept of arrest, as the magistrate had found
  • Whether the arrest of the appellant was lawful under section 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
  • Whether the constable's purpose at the time of arrest was to bring the appellant before a court to answer a charge, rather than to detain her for further enquiries

Decision

Neilson DCJ rejected the magistrate's reasoning that there are two separate legal concepts of arrest: one for the purpose of charging and another for the purpose of detaining a person to make further enquiries. The District Court held there is only one concept of arrest in law. As authority from the High Court in Williams v R (1986) 161 CLR 278 confirmed, the sole lawful purpose of an arrest is to bring the arrested person before a court to answer a charge.

The magistrate had expressly found that Constable Hack did not fully understand the concept of arrest and that his initial purpose was detention for further enquiries rather than arrest for the purpose of charging. On that finding, the arrest was unlawful from the outset. Because the arrest was unlawful, the charge of resisting it could not stand.

Neilson DCJ also found the arrest was wholly inappropriate in the circumstances. The constable knew the appellant's name and address, she had no criminal record, and any immediate risk of further interaction between the appellant and the complainant could readily have been addressed by serving a field Court Attendance Notice and an interim apprehended domestic violence order at a more reasonable hour. The decision to attend at 4.15am with three officers, one specifically brought to conduct a search, was described as a gross over-reaction.

Orders Made

  • The conviction recorded and sentence passed by the Downing Centre Local Court on 12 July 2012 were set aside.
  • The charge of resisting arrest (offence H46539910, sequence 002) was dismissed.

Key Takeaways

  • There is only one recognised legal concept of arrest: the purpose must be to bring the arrested person before a court to answer a charge. Detaining a person to conduct further enquiries does not constitute a lawful arrest.
  • Under Williams v R (1986) 161 CLR 278, confirmed by the District Court here, a desire to question an arrested person provides no lawful basis for arrest or for delaying presentation of that person to a court.
  • Where a magistrate's own findings establish that the arresting officer's purpose was not to charge the arrested person, a conviction for resisting that arrest cannot be sustained.
  • A conviction for resisting arrest requires that the underlying arrest itself was lawful. An arrest made for an improper purpose is unlawful, and resistance to it does not give rise to criminal liability.
  • Section 99(3) of LEPRA was noted in this context; the decision affirms that statutory arrest powers do not expand the common law purpose of arrest beyond bringing a person before a court to answer a charge.

Legislation and Cases Referenced

Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(3)

Cases
- Williams v R (1986) 161 CLR 278 (High Court of Australia)
- DPP v Carr [2002] NSWSC 194
- DPP v CAD & Ors [2003] NSWSC 196
- Dungay v R [2001] NSWCCA 443
- Fleet v District Court of New South Wales [1999] NSWCA 363
- Daemar v Corporate Affairs Commission [1990] NSWCA 51
- McLiney v Minister [1911] VLR 347
- R v Ryan (1890) 11 NSWR 171