DPP (NSW) v NASSIF & ANOR

14 -IN THE SUPREME COURTOF NEW SOUTH WALESCOMMON LAW DIVISIONJUSTICE DAVID LEVINEFRIDAY 15 NOVEMBER 200211847 0F 2002DIRECTOR OF PUBLIC PROSECUTIONS (NSW)(Plaintiff)vCHRISTOPHER NASSIF(First Defendant)SAADA NASSIF(Second Defendant)JUDGMENT (Justices Act 1902 - appeal against dismissal of informations - Crimes Act s352(1)(a) - entry without warrant -sufficient announcement)1 The Director of Public Prosecutions seeks orders pursuant to s104(2) and s109 of the Justices Act 1902 quashing the order of Magistrate Ms J Betts dismissing informations against the first and second defendants. The defendants were charged with offences of assaulting a police officer in the execution of duty occasioning actual bodily harm (Crimes Act 1900 s60(2)); assaulting a police officer in the execution of duty (s58); hindering a police officer in the execution of duty and resisting police officers in the execution of duty (Crimes Act s546C).2 The evidence before me is made up of an affidavit of Stephen John Irvin sworn 2 July 2002 to which is annexed the transcript of the proceedings on 26 February 2002 before her Worship, which includes her rulings and statements of various police officers, particularly that of Senior Constable Howell. Exhibit A is the court attendance coversheets; exhibit B is made up of further court records and the Informations and exhibit C is the transcript of the evidence before her Worship.3 The factual background is not in issue. 4 By reference to the outline of submissions for the plaintiff and the statement of Constable Howell and the evidence before her Worship, that background can be stated as follows. On 15 March Senior Constable Howell detected on his vehicle's radar another vehicle travelling at 84kph in a 50kph zone. Thereafter, as set out in paragraph 6 of the officer's statement there occurred the following:" I got out of my vehicle and said, "Driver, come here, I need to speak to you about the speed of your vehicle."He said, "No way man, I did nothing."I said, "Driver, I have detected you speeding by the radar here, I need to see your license."He continued towards the house and said, "You were going to turn left. Your full of shit. Get stuffed, I did nothing."I said, "Driver, state your full name and address, it is an offence not to."He walked into the house and I requested another police vehicle to attend my location. I said, "State your name."He started becoming agitated and said, "What did you say…get stuffed I did nothing".I said, "Well mate, your under arrest for refusing to say your name and address. I am getting some backup. Once it gets here we will force entry into the house."He became more agitated and yelled, "Get off my property, you can't touch me."" (emphasis added)5 Events proceeded as follows:"7. I said, " I am in immediate pursuit, state your name and address."I made a further transmission as I watched the defendant. He was walking around inside the house and occasionally walking back to the front door and yelling something at me which I could not understand in it's entirety.I said, "All I need to do is see your license, thats' all. It's just a ticket."An elderly woman, I know to me as Saada NASSIF come to the front door with a second male, Christopher NASSIF. Christopher NASSIF was wearing boxer shorts only.I said to the woman, "I have caught your son speeding. All I need to do is see his license, maybe you can talk to him." She said something which I could not understand.Constable CUELL arrived at my location.Christopher NASSIF said, "Mate, you can't do nothing."I said to the driver, "All I need to do is see your license."Christopher NASSIF said, "He hasn't done nothing."I said, "He has been locked on radar. If it will satisfy you, come and have a look." I took NASSIF to the police vehicle and showed him the radar display.I explained it's meaning.NASSIF said, "It wasn't him you can't prove nothing. It must have been someone else."We started to walk back to the house. I saw that Senior Constables' SETTER and BYERS had arrived.8. When we got to the side gate I saw that Saada NASSIF and the driver were standing at the front of it. Saada NASSIF said, "You have no right to come in, this is our property."Christopher NASSIF said, "You can't come in, it's private property. Go and get a warrant."I said, "I'm in immediate pursuit of your brother. I don't need one."Christopher NASSIF then pushed the driver down the driveway away from police. He started dancing around and said, "Come and get me then, this is private property, come on try it."He was notioning for us to approach him, gesturing with his hands. Saada and Christopher NASIF remained at the gates and refused to move. I said to them, "You are hindering us from arresting him. If you don't move you will be arrested and charged." (emphasis added)6 The defendants remained at the gates and refused to move and the first defendant pushed the driver away from the police. It was these actions which formed the basis of the hinder police charges.7 The first defendant placed his hands to his rear and said "Arrest me". This was in the presence of his mother, the second defendant. I was invited by counsel for the defendants to assume that the emphasis was on the word "me". This I cannot do. It may well be that the words were uttered in a way that could be consistent with the first defendant offering himself for arrest, that is, being compliant and submitting, or it could well be that the words were said defiantly. I do not know. In any event, as an officer moved to arrest the first defendant the second defendant started screaming and pushing against Howell at which time he was on the roadway side of the gate at the side of the house. The driver rushed forwards with his fist clenched saying "I'll kill you" and Howell used capsicum spray, some of which came in contact with the defendants. Shortly thereafter, the first defendant punched another officer in the face. Howell and another officer went down the driveway towards the driver who ran towards the police holding a long pole in a baseball-type grip and yelling, "I'll kill you". Howell drew his firearm and told him to "drop it". The other officer sprayed the driver with capsicum spray. The driver swung the pole (which was in fact a broom handle) at Howell, hitting him on the hand and then ran into the backyard. The first defendant also ran into the backyard where he was arrested by other officers. The premises were searched but the driver was not located. Apparently, in all about fourteen police vehicles ended up attending at the scene. 8 Howell was unable to say whether the second defendant observed anyone, including one of her sons, enter the house prior to the incident and he also conceded that the second defendant had a limited grasp of English.9 On 26 March 2002 the learned Magistrate dismissed each of the informations concluding that: "On the evidence taken…[at] its highest, I am not of the view that the announcement made by Constable Howell to Christopher Nassif and Saada Nassif was indeed a proper announcement as required. Accordingly, the entry upon the premises by police was unlawful. Accordingly, as a result of that [un]lawfulness anything that flowed thereon after that time must be disposed of by way of dismissal".10 Her Worship was satisfied that the police had the reasonable suspicion that the person (the driver) was involved in the commission of an offence, namely, speeding. I interpolate that of course the reasonable suspicion of Constable Howell extended beyond that - this driver had committed an additional offence by refusing to disclose his name. Her Worship found that Howell's announcement to the driver that he was under arrest and that there would be a forceful entry when assistance arrived was a proper announcement. The prosecution relied upon that announcement as that required to be given to the defendants. In addition, the prosecution relied upon the announcement made to the defendants that they were hindering police and that if they did not move they would be arrested.11 Her Worship found that the second defendant did not fully appreciate what was being said but that she had some knowledge of English. This finding was made presumably in the light of the clear evidence given by Constable Howell that the second defendant had, at the point indicated above, said: "You have no right to come in, this is our property".12 Whilst her Worship did remark to the effect that it was not a common occurrence for persons to be arrested for the offence of speeding, the commonality or otherwise of the occurrence is not a critical factor. As I have remarked above, this is not a mere speeding matter but one, by the time the driver had entered into the house, which had involved an escalation of that offence to the commission of another, namely, the refusal to give details. 13 Her Worship also stated:"The announcement in relation to Mrs Nassif, in my view, in the absence of her knowledge of English to any substantial degree, I cannot be satisfied that she was made fully aware of why the police were on the premises".It was acknowledged that there was no issue that the officers, by their uniforms, were identifiable as police officers. Her Worship went on to consider that whether or not the first defendant gave the police an implied license to be on the premises it could not be extended to an implied license given by Mrs Nassif.14 S352(1)(a) of the Crimes Act 1900 states:352(1) Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act.A forcible entry by police officers is permitted where there is reasonable and probable grounds for belief that the person sought was in the premises and a proper announcement is made prior to entry (Lippl v Haines (1989) 18 NSWLR 620). Lippl involved the forcible entry by armed police officers into a house where a suspected criminal was thought to be. In the course of entry damage was occasioned to both property and persons. No announcement was made prior to entry except that an officer called out "Police here". The Court of Appeal held that the law on this subject is the same as the law expounded by the Supreme Court of Canada in Eccles v Bourque (1974) 19 CCC (2d) 129. In that case three plainclothes and armed officers entered an apartment to apprehend a suspect wanted upon warrants. The officers knocked at the door and when it was opened one officer produced his badge and said "Vancouver City Police". The officers said they were looking for a man wanted on a warrant and that they wished to search the premises. The Court held (at 135) that the announcement sufficiently discharged the duty upon police to give notice. In the course of the judgment of the Court given by Dickson J, his Honour said (133-4):"Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations for this. An unexpected intrusion of a man's property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance. No precise form of words is necessary.…In the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry".15 The law in Eccles has been accepted as good in this country in a number of cases: Kennedy v Pagura (1977) 2 NSWLR 810 at 812; Halliday v Nevill (1984) 155 CLR 1 at 16 per Brennan J and R v O'Neill (2001) 122 A Crim R 510. 16 In the last mentioned case, O'Neill, the police in seeking to enter private premises stated a number of times to the occupier that they needed to speak to him. The police then forced their way into the house and were then attacked. Mason P stated that the appeal raised the question of what was a proper announcement and referred to a number of authorities including Lippl and Eccles. His Honour said (at paragraphs 28-30):"[28] These principles were not met in the present case because the officers' announcements went no further than to request entry on a basis which the respondent was entitled to refuse (ie "We need to speak to you").[29] This was not a case where earlier circumstances would, together with the words used, have expressed implicitly the officers' intent to arrest (cf Corpus Juris Secundum, "Arrest" s56 n86, United States v Manning 448 F 2d 992 (1971), cert denied 404 US 995). An extreme example of such phenomenon would occur if a person who was arrested or in the course of being arrested fled directly to his or her residence and the police followed in hot pursuit (see discussion in the report of Semayne in 77 ER at 196, United States v Santana 427 US 38 (1976)).[30] The learned trial judge appears to suggest that an announcement of intention to arrest would not have sufficed in the present case (see the sentence commencing "Technically speaking" in the passage set out at para11 above). I respectfully disagree. Had such announcement been made then breaking down the door would have been authorised, at least after a sufficient interval to infer non-cooperation. However, the judgment below does not stand upon that sentence and I would otherwise affirm it".17 The decision in O'Neill is further considered in Regina v Merritt [2002] NSWCCA 368 (2 September 2002). There the Court was concerned with a statement made "after entry", which statement was made in connection with "a couple of driving matters". Simpson J expressed a tentative view that that statement would not have been sufficient had it been made prior to entry (see paragraph [8]). 18 For the plaintiff it is submitted that the police had two valid reasons to enter upon the land: first, to arrest the driver for refusing to give his name and address; and secondly, to arrest the defendants for hindering pursuit of the driver. In order to have lawfully gained entry the police were required to give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority by identifying themselves as law enforcement officers and (iii) notice of purpose by stating a lawful reason for entry. It is clear that in the present case the first and second requirements were fulfilled, and it is apparent that the learned Magistrate did not hold that an announcement stating a lawful purpose for entry had not been made.19 The uncontested evidence established that the defendants were provided with the following information: first, when they came to the front door Constable Howell stated that he had "caught your son" speeding and that he wished to see his license. (I interpolate that there was no evidence, and, I gather still is no available evidence, that the driver was the son of the second defendant and the brother of the first. Nonetheless, I further interpolate any grounds upon which the Constable came to the view that on the probabilities the driver was the son, were reinforced by the statement that the driver made about "his" property, referred to above). Secondly, Howell stated that the driver had been "locked on radar" and invited the first defendant to have a look at the equipment, which he did. Third, Howell referred to a warrant saying: "I am in immediate pursuit of your brother. I don't need one" whereupon the defendants remained at the gate and refused to move and Howell, fourthly, said: "You are hindering us from arresting him. If you don't move you will be arrested and charged".20 It is submitted that the learned Magistrate's conclusion that the second defendant appeared not to fully appreciate what was being said was not open on the evidence. Bearing in mind the evidence before her Worship as to the statement made by the second defendant, irrespective of any concession as to her difficulty with English, the submission is made good. She had a limited grasp of English and the evidence patently shows that she sufficiently understood that the police wished to enter the property and she did not consent. Further, it is submitted, that there is no requirement that the person in the position of the second defendant be "fully" aware of why the police are on the premises. None of the authorities to which I have been referred articulate any applicable test as requiring the police to make a person "fully" aware. They have to be made aware by a proper announcement. Further, it is submitted, that the occasions for forcible entry usually do involve elements of urgency and stress. In these circumstances police are required to act reasonably and in the circumstances as they find them. In the instant case the second defendant had evidenced a limited grasp of English, was in the company of the first defendant who suffered no disadvantage, and made a statement from which it can only be inferred that she knew what the police wanted to do. In any event, what Howell said was uncomplicated in its expression and wording and persons with a rudimentary grasp of English in those circumstances could be expected reasonably to understand then.21 All that was announced in the present case complied with there being no requirement for precise words, and indeed was no less fulsome that the announcement held to be good in Eccles v Bouque. Constable Howell's stated intention to arrest the defendants for hindering the police was also not dissimilar to the announcement in O'Neill which Mason P held (paragraph [30]) amounted to a sufficient announcement. 22 The issue for consideration is whether there was evidence before the learned Magistrate of any announcement made by the police; there was. Secondly, was that announcement sufficient, in my view, vis-à-vis both the defendants in accordance with the authorities referred to above, and on the evidence of the prosecution case as to what was said and in what circumstances, they were sufficient. The third matter for consideration is whether there was a basis for her Worship finding that vis-à-vis the second defendant (Mrs Nassif) there was reason to hold that they were insufficient. 23 Her Worship I find had erred in law in holding that the announcement did not constitute a sufficient announcement. In any event, further (even taking into account her Worship's finding that it was an insufficient announcement) there would otherwise be no basis for not discriminating between the first and second defendants on the basis of language difficulty.24 The defendants to the summons sought some comfort from the statement made by Mason P in Fleet v District Court of New South Wales & Ors [1999] NSWCCA 363 at paragraph 73:"[73] Lawfulness of arrest is one thing, appropriateness is another. Nevertheless, it is difficult to understand how it could have been thought appropriate to exercise any available power of arrest in the present circumstances, where Mr Dymond and the third opponent knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing. Deane J pointed out in Donaldson v Broomby (1982) 60 FLR 124 at 126 that: Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable".25 I would not for one moment dissent from what his Honour there said. The circumstances of the case giving rise to it are quite different from that here. Further, as I have already remarked, whilst it may be an appropriate subject for comment that a speeding charge by itself is not usually sufficient to warrant arrest or forcible entry, at the very least it has to be borne in mind that the breach of the traffic regulations in relation to speeding had been aggravated by the patent refusal of the driver to give his name and address.26 The question of the lawfulness of the police officer's conduct cannot, trite though it is to say, be judged merely against any notion that may be formed as to the triviality of the offence.27 The defendants sought to persuade me that in some way the series of statements made by Constable Howell could not amount to a "proper announcement". He was pursuing an unidentified male, considered to be the brother of the first defendant by the Constable, and the son of the second defendant. In this regard, it is quite right, as Mr Brewer submitted, that the facts of this case do not coincide with, and indeed to some extent differ significantly from, those referred to in the authorities referred to above. But it is the import of those authorities when viewed against the evidence in the prosecution case at its highest as to what was said that provides a basis for judgment. 28 I am of the opinion that there was evidence in the prosecution case at its highest that the "cause" or "purpose" was sufficiently announced by the officer and rejected by the residents thus constituting a basis for entry without consent. The language of the second defendant, as part of all the circumstances going to the determination of the correctness of the announcement, should not have been overlooked in the way that it appears to have been by the learned Magistrate. This, in my view, is a critical piece of evidence and goes against the proposition that there was nothing suggested that the second defendant would have been made aware of anything that Howell said by reason of the presence of the first defendant. There was evidence from Constable Howell as to the conduct of the second defendant that did not provide a basis for the conclusion to which her Worship apparently came.29 The submissions for the plaintiff are compelling.30 I make the following orders:1 Pursuant to s109(a) of the Justices Act 1902 the order of Ms J Betts, Magistrate, dismissing the informations laid against the first defendant for assaulting a police officer in the execution of his duty thereby occasioning actual bodily harm (s60(2) Crimes Act 1900), hindering a police officer in the execution of his duty and resisting police officers in the execution of their duty (s546C Crimes Act) is quashed.2 Pursuant to s109(a) of the Justices Act 1902 the order of Ms J Betts, Magistrate, dismissing the informations laid against the second defendant for assaulting a police officer in the execution of his duty (s58 Crimes Act 1900) and hindering a police officer in the execution of his duty (s546C Crimes Act) is quashed.3 I declare that the learned Magistrate erred in law in holding that the announcement made by Constable Howell to the first and second defendant was an insufficient announcement for the purposes of the provisions of s352 of the Crimes Act.4 I declare that the learned Magistrate erred in law in dismissing the informations laid against the first and second defendants.5 I order the proceedings against both the first and second defendants to be remitted to the learned Magistrate to be dealt with according to law.6 The exhibits are to be returned. 7 I grant liberty to the parties to apply in relation to costs.**********

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