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[2015] WASCA 32
Court of Appeal (WA)
2015-02-20
Mazza JA, Lure P, Buss JA, Miere J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : JOHNSON -v- STASKOS [2015] WASCA 32
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : STASKOS -v- JOHNSON [2014] WASC 137
Criminal law and procedure - State appeal against decision of single judge to acquit respondent of serious assault of police officer - Whether arrest lawful - Whether respondent denied procedural fairness - Common law requirement of notice of the reason for arrest - Whether common law requirement abrogated by statute
Criminal Appeals Act 2004 (WA), pt 2 div 3, s 12
Criminal Code (WA), s 74A(2)(a), s 172(2), s 232, s 318(1)(d), s 318(4)(b)
Criminal Investigation (Consequential Provisions) Act 2006 (WA)
Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78
Christie v Leachinsky [1947] UKHL 2; [1947] AC 573
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503
Cumberbatch v The Crown Prosecution Service [2009] EWHC 3353 (Admin)
Fox v Beringer [2011] WASC 38
Johnstone v New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422
McKay v Commissioner of Main Roads [2013] WASCA 135
Nguyen v Elliott (Unreported, VSC, 6 February 1995)
Nicholas v Parsonage [1987] Crim LR 474
Police v Dafov [2008] SASC 247; (2008) 102 SASR 8
R v O'Donoghue (1988) 34 A Crim R 397
Staskos v Johnson [2014] WASC 137
State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
1 McLURE P: I agree with the orders proposed by Mazza JA and his reasons for concluding that the respondent was accorded procedural fairness. I propose to state my own reasons on ground 1. The facts and relevant background are detailed by Mazza JA and not repeated here unless required for an understanding of my reasons.
2 The issues raised by ground 1 are: (1) the scope of the common law rule which requires that a person arrested be informed of the reasons for the arrest; (2) does the common law rule apply in this State; (3) if yes, was there a breach of the common law rule in Senior Constable Robinson's arrest of the respondent; (4) was the arrest of the respondent by Constable Pracy unlawful; and (5) if yes, was the concurrent arrest of the respondent by Senior Constable Robinson 'tainted' by Constable Pracy's unlawful arrest of the respondent.
3 Generally, it is a condition of a lawful arrest at common law that a person arrested be informed of the reasons for the arrest: Christie v Leachinsky [1947] UKHL 2; [1947] AC 573. On my reading of Christie, the common law requires that the arrested person be informed of the reasons prior to or at the time of the arrest. However, the expression 'at the time of' the arrest comprehends a short but reasonable period of time around the moment of arrest, both before and after (see Nicholas v Parsonage [1987] Crim LR 474, 475). It is not suggested the respondent was informed of the reason for her arrest at the time it occurred.
4 There are exceptions to the general rule, some of which are identified in the judgment of Viscount Simon in Christie quoted in Mazza JA's judgment at [100].
5 The common law rule does not require that the arrested person be informed of the specific offence for which he or she is being arrested, it being sufficient to refer to the facts which gave rise to the arrest.
6 As compliance with the general rule is a condition of a lawful arrest, non-compliance renders the arrest unlawful, thereby potentially exposing the arresting officer to criminal liability or (in the absence of any statutory immunity) liability for the tort of false imprisonment: Christie (584, 593).
7 The common law rule does not apply in this State because it is inconsistent with s 128 of the Criminal Investigation Act 2006 (WA) (CIA). That conclusion is supported by s 231 of the Criminal Code (WA) (the Code) and the relevant legislative history.
8 I will start with the legislative history. The Criminal Investigation (Consequential Provisions) Act 2006 (WA) (Consequential Provisions Act) came into effect at around the same time as the CIA. The purpose of the Consequential Provisions Act, as its name implies, was to amend various Acts as a consequence of the enactment of the CIA. That included the insertion of s 231(2) of the Code and the repeal of s 232 of the Code.
9 Section 232 was positively inconsistent with the common law rule in important respects. It relevantly provided:
It is the duty of a person arresting another, whether with or without warrant, to give notice, if practicable ... of the cause of the arrest.
A failure to fulfil either of the aforesaid duties does not of itself make ... the arrest unlawful, but is relevant to the inquiry whether the process or warrant might not have been executed or the arrest made by reasonable means in a less forcible manner.
10 The last paragraph of the former s 232 is picked up in s 231(2) of the Code. Section 231 of the Code relevantly provides:
(1) It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.
(2) In determining whether any process or warrant might have been executed, or any arrest made, in a less forcible manner, the following shall be taken into account -
...
(b) if it was practicable to do so at the time, whether the person making an arrest, whether with or without a warrant, gave notice of ... the cause of the arrest.
11 Section 231(2)(b) of the Code is positively inconsistent with the continuing application of the common law rule insofar as failure to comply with the rule renders the arrest unlawful. The provision clearly contemplates that an arrest is lawful notwithstanding a failure to inform the person at the time of the arrest of the cause (ie reason) for the arrest.
12 Section 7 of the CIA governs its relationship with the common law. Section 7 provides:
(1) Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2) If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3) If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.
13 The unlawfulness consequence of a breach of the common law rule is also inconsistent with s 128 of the CIA. Section 128 sets out the conditions that enliven the power of a police officer to arrest for a serious offence and for an offence that is not a serious offence. The offence for which the respondent was arrested by Senor Constable Robinson was disorderly conduct which is not a serious offence. Section 128(3) of the CIA relevantly provides:
A police officer ... may arrest a person for an offence that is not a serious offence if the officer reasonably suspects -
(a) that the person has committed, is committing, or is just about to commit, the offence; and
(b) that if the person is not arrested -
...
(ii) the person will continue or repeat the offence; or
(iii) the person will commit another offence[.]
14 Having regard to the legislative history and s 231(2) of the Code, the purpose and intent of s 128 is to exhaustively state the conditions that enliven a police officer's power to arrest a person. The common law rule is inconsistent with that provision in that it would add a further condition, satisfaction of which would be necessary to enliven the power to arrest.
15 Further, because the consequence of the common law rule, that of unlawfulness, goes to its heart, the inconsistency is of such significance that there is no scope for the continued operation of the common law rule in any amended or abridged form. That conclusion is supported by the statutory right of an arrested suspect in s 138(2)(a) of the CIA 'to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed'. Section 138(3) places an obligation on the officer in charge of the investigation as soon as practicable after the arrest to afford the suspect his or her rights under s 138(2). It is clear from the statutory text and context that the right and obligation arise after arrest.
16 Having regard to the legislative history and the scope of s 128 of the CIA, I am satisfied that the right and obligation in s 138(2)(a) and s 138(3) are intended to cover the field on the timing and content of the information to be provided relating to arrest.
17 Thus, the primary judge erred in concluding that Senior Constable Robinson's arrest of the respondent was unlawful because of the failure to comply with the common law rule.
18 If the common law continues to apply, the primary judge erred in finding that Senior Constable Robinson was obliged to inform the respondent of the reason for her arrest before or at the time of the arrest. On the facts found by the magistrate, it was not practicable (or reasonable) to comply with the common law rule. The respondent committed the offence to which she pleaded guilty in the presence of police officers. She was in a highly volatile and aggressive state. Without any rational basis, she was from the outset gratuitously aggressive to police, seemingly provoked by their mere presence. Senior Constable Robinson made the arrest of the respondent following a pursuit. Upon Senior Constable Robinson reaching and arresting the respondent, she immediately resisted with considerable force and violence. After the respondent was eventually subdued, she was told the reason for her arrest.
19 At the hearing of the appeal, the respondent sought to uphold the decision of the primary judge on a different ground. It is to the effect that Senior Constable Robinson's conduct in concurrently arresting the respondent for the offence to which she pleaded guilty had the effect of assisting the unlawful conduct of Constable Pracy, thereby 'tainting' Senior Constable Robinson's conduct.
20 This submission depends upon a finding that Constable Pracy's arrest of the respondent was unlawful. The magistrate did not make an express finding to that effect. However, the primary judge concluded that it was a necessary consequence of the magistrate's finding that Constable Pracy's conduct was tainted by the conduct of Constables Sutton and Manfroni.
21 The magistrate's findings were as follows. Constable Sutton's use of force to effect the arrest of Mr Gourlay was more than was reasonably necessary in the circumstances and was unlawful. When Constable Manfroni joined in Constable Sutton's purported arrest, his actions 'were tainted by the same brush' (ts 13).
22 The magistrate's findings concerning Constable Pracy were in connection with the obstruction offence the subject of count 2, which was based on the respondent pushing Constable Pracy in the chest. The magistrate found that at the time the respondent pushed Constable Pracy in the chest, Constable Pracy was heading towards Mr Gourlay with the intention of assisting Constables Sutton and Manfroni. The magistrate said:
The issue is whether Pracy was tainted with the same brush as Sutton. I conclude she was. It was her intent to assist Sutton in restraining Gourlay. Sutton's actions I found to be unlawful.
As a consequence, in my view, Pracy was not acting in the execution of duty in aiding him, and as a consequence the accused did not obstruct [Pracy] (ts 13).
23 That finding had the consequence that the prosecution had not proven an element of the obstruction offence. The magistrate did not go on to consider whether Constable Pracy's arrest of the respondent for obstruction was unlawful, as the primary judge concluded.
24 The issue is whether the magistrate's findings compel the further finding that Constable Pracy's arrest of the respondent for obstruction was unlawful.
25 The appellant accepts the magistrate's finding that Constable Pracy was not acting in the execution of her duty for the purpose of the obstruction charge but says that falls short of requiring or justifying a finding that Constable Pracy's arrest of the respondent for obstruction was unlawful. According to the appellant, it will not be unlawful if, at the time of the arrest, Constable Pracy reasonably suspected the relevant matters in s 128(3)(a) and (b) of the CIA.
26 For the purposes of the CIA, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable. As to which, see Fox v Beringer [2011] WASC 38.
27 I do not accept the appellant's submission. The following findings are unchallenged. Constable Sutton was acting unlawfully in his arrest of Mr Gourlay. At the time Constable Pracy was pushed by the respondent, Constable Pracy's intention was to assist in the unlawful conduct of Constable Sutton. That entitled the respondent to obstruct Constable Pracy in the way she did. Constable Pracy was aware of all relevant circumstances that gave rise to those legal outcomes. It is clear from the magistrate's reasons that the lawfulness of Constable Sutton's conduct did not involve matters of fine judgment. The disproportion of the force was patent. In those circumstances it cannot be said that, judged objectively, Constable Pracy reasonably suspected at the time of the arrest that the respondent had committed the offence of obstruction.
28 The respondent's contention is to the effect that Senior Constable Robinson's arrest of the respondent is 'tainted' because it had the objective effect of assisting the unlawful arrest of the respondent by Constable Pracy.
29 No attention was given by the parties to the meaning of the concept 'taint' which appears to come from English case law in particular, Cumberbatch v The Crown Prosecution Service [2009] EWHC 3353 (Admin). In the circumstances of that case the term 'taint' required some actual or intended involvement, whether by aiding or otherwise, in the unlawful conduct with knowledge thereof: Cumberbatch [20], [34]. However, knowledge of the circumstances that render the conduct unlawful is not always required: Nguyen v Elliott (Unreported, VSC, 6 February 1995) (Hedigan J), cited with approval in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 [118] - [121]. In Nguyen, a police officer was held not to have acted in the execution of his duty when he assisted in an unlawful arrest carried out by another officer which arrest he thought to be lawful.
30 In this case the magistrate found that Senior Constable Robinson did not see Constable Sutton's unlawful arrest of Mr Gourlay; when she took hold of the respondent it was to arrest her for disorderly conduct, not for any obstruction of Constable Pracy and not to assist in or facilitate the respondent's arrest by Constable Pracy; and Senior Constable Robinson's actions stood alone and were untainted by the conduct of Constables Sutton, Manfroni and Pracy.
31 In those circumstances, the fact that Senior Constable Robinson and Constables Pracy and Johnson acted together to subdue the respondent's violent resistance does not render Senior Constable Robinson's otherwise lawful arrest unlawful. In any event, even if Senior Constable Robinson's
conduct was unlawful and therefore not in the performance of her function, it would be necessary to consider whether the respondent's conduct the subject of count 3 was excessive and thus not authorised, justified or excused by law under s 248(4) of the Code: Coleman Power [121]; Nguyen.
32 BUSS JA: I agree with the orders proposed by Mazza JA. I agree with the reasons of McLure P in relation to ground 1 and the reasons of Mazza JA in relation to ground 2.
33 MAZZA JA: This is an appeal from a decision of Le Miere J pursuant to pt 2 div 3 of the Criminal Appeals Act 2004 (WA).
34 The respondent was charged in the Fremantle Magistrates Court with three offences against the Criminal Code (WA), all of which were alleged to have occurred on 13 January 2013 at Fremantle, being counts of behaving in a disorderly manner in public contrary to s 74A(2)(a) (count 1), obstructing a public officer in the performance of that officer's function or employment contrary to s 172(2) (count 2) and assaulting a police officer who was performing a function of her office or employment and causing bodily harm contrary to s 318(1)(d) and s 318(4)(b) (count 3). Count 3 carries a mandatory sentence of a term of immediate imprisonment of at least 6 months.
35 The three offences were heard together before his Honour Magistrate Malley in a trial which was conducted over five sitting days. During the trial, the respondent pleaded guilty to count 1. On 19 September 2013, the learned magistrate found the respondent not guilty of count 2, but guilty of count 3. The respondent was not sentenced in respect of count 3. On 8 October 2013, McKechnie J suspended the learned magistrate's decision pursuant to s 12(1) of the Criminal Appeals Act until further order (blue AB 19).
36 The respondent then appealed against the learned magistrate's decision to convict her of count 3. On 16 April 2014, Le Miere J allowed the appeal, set aside the conviction on count 3 and substituted a verdict of not guilty: Staskos v Johnson [2014] WASC 137.
37 The appellant now appeals against these orders. In effect, the appellant seeks to reinstate the conviction on count 3.
38 The prosecution notice as amended at trial read:
39 Prior to trial, the respondent's legal advisers were served with the prosecution brief. That document comprised, with respect to each charge:
(a) The statement of material facts and a document entitled 'WA Police evidence matrix', which broke down each offence into its elements and particularised the allegations made in respect of those elements and the witnesses who would be called to establish them; and
40 At trial, the prosecution called two civilian witnesses, Mr Mark Langridge and Mr Kyle Mead-Hunter, police officers Senior Constable Kelly Simone Robinson, Constable Kristie Lee Pracy, Constable David Colin Johnson, Constable David Michael Manfroni, Constable Leigh Michael Sutton and Constable Nathan John McNamara, and two medical practitioners, Dr Jeremy Hickey and Dr Kevin Norcott. The respondent testified in her own defence and called Constable Elise Brown and Dr Frederick Walker, a doctor who examined her at Fremantle Hospital on 13 January 2013.
41 The evidence adduced by the prosecution was to this effect. On the evening of Saturday 12 January 2013, the respondent and some friends had dinner at a restaurant in Fremantle. Afterwards, they went to a nightclub on South Terrace. The respondent drank alcohol at the restaurant and the nightclub, but it was not suggested that she became overly intoxicated. The respondent left the nightclub just after 1 am on 13 January 2013. As she did so, she saw Mr Kevin Gourlay standing in the queue to enter the nightclub. The respondent and Mr Gourlay had been in a relationship, but that relationship had ceased approximately 8 weeks earlier. On seeing the respondent, Mr Gourlay became upset and left the queue. They began a heated argument. The respondent followed Mr Gourlay down South Terrace and then into Henderson Street. Each was yelling and swearing at the other in a manner which plainly constituted disorderly behaviour. Eventually, they stopped outside a florist's shop at the corner of Henderson and William Streets, not far from the Fremantle police station.
42 Three police officers - Senior Constable Robinson and Constables Sutton and Johnson - heard the commotion and went to investigate. The officers separated Mr Gourlay and the respondent in an attempt to calm them down and to defuse the situation. Unfortunately, the arrival of the police officers had the opposite effect. The respondent was hysterical, swearing at and abusing the police.
43 As this occurred, the respondent's mother arrived at the scene. So too did police reinforcements, including Constables Manfroni and Pracy. The respondent's mother offered to drive her daughter and Mr Gourlay home, but the police were still making inquiries and the respondent herself did not indicate that she wished to be taken home.
44 The arrival of police reinforcements only heightened the respondent's hysteria. Up until this point, neither the respondent nor Mr Gourlay had been arrested, although, having regard to their behaviour, the police may well have done so. At this time, Mr Langridge and Mr Mead-Hunter, who had observed the couple's earlier behaviour, spoke to the police.
45 While the police were discussing the matter, Mr Gourlay and the respondent commenced to walk down William Street in a westerly direction towards Kings Square. The police officers did not attempt to stop them from doing so. Had they gone quietly, it appears that the police would not have taken any further action. However, as they walked away, Mr Gourlay and the respondent resumed their argument, yelling and swearing at each other. Mr Gourlay punched at walls, windows and a sign and yelled abuse at the police.
46 In response to this behaviour, a group of five police officers pursued Mr Gourlay and the respondent. Those officers were Senior Constable Robinson and Constables Sutton, Johnson, Manfroni and Pracy. Mr Gourlay broke into a jog in the direction of Kings Square. The respondent took off her shoes and ran after him. As the police officers came upon Mr Gourlay and the respondent, Mr Gourlay stopped and put his hands up in a gesture of surrender. The respondent stood in front of him and extended her arms out to her side and said, 'leave him alone' or 'don't touch him'. This gesture was done, unsuccessfully as it turned out, to block Constables Manfroni and Sutton from Mr Gourlay.
47 Constables Manfroni and Sutton ran around the respondent apparently to apprehend Mr Gourlay. Constable Sutton tackled him and forced him to the ground in a manner which the learned magistrate later described as 'a most unfortunate piece of policing' (blue AB 544).
48 The respondent did not apparently see what Constables Manfroni and Sutton did to Mr Gourlay. Certainly, she gave no evidence to indicate that she had, although one of the police officers, Constable Johnson, testified that as Mr Gourlay was being restrained, the respondent moved towards him.
49 Constable Pracy went to the assistance of Constables Manfroni and Sutton. As she did so, the respondent pushed Constable Pracy with two hands to the chest and told the officer to 'fuck off, slut'. It was this action upon which count 2 was based.
50 In response, Constable Pracy, having formed the intention to arrest her for obstruction, grabbed the respondent by the arm. Shortly afterwards, Senior Constable Robinson and Constable Johnson also grabbed her. The respondent struggled with the three officers. She was described by the learned magistrate as being 'out of control' (blue AB 554). The respondent was told a number of times to 'stop resisting'. She continued to struggle with the police. Eventually, she was taken to the ground, where she kept struggling. While doing so, she deliberately bit Senior Constable Robinson on the left thigh. The respondent also struck Senior Constable Robinson twice to the face in the region of the right eye. Senior Constable Robinson suffered injuries to her left thigh and right eye region.
51 Senior Constable Robinson testified that, after Mr Gourlay and the respondent had walked away from the police at the corner of Henderson and William Streets and behaved in a disorderly manner, she decided to arrest them for 'disorderly conduct' because she believed that the behaviour would continue unless she took that course. The learned magistrate found that when Senior Constable Robinson took hold of the respondent, her intention was to arrest the respondent for disorderly conduct. Although Senior Constable Robinson did not use words to the effect of 'you're under arrest for disorderly conduct', she did tell the respondent to stop resisting. Once the respondent was restrained on the ground, Senior Constable Robinson told her that she was under arrest for disorderly conduct and assault of a public officer.
52 After her apprehension, the respondent was taken on foot to the Fremantle police station. There, she complained about her treatment at the hands of police. Subsequently, she was taken to Fremantle Hospital where her various injuries were noted. Photographs were also taken of those injuries. Medical evidence was given at trial about the injuries sustained by the respondent and Senior Constable Robinson.
53 The respondent's testimony was relevantly to this effect. At the time counts 2 and 3 were allegedly committed she was hysterical. She could not recall pushing Constable Pracy. She said that Constable Pracy grabbed her right arm. She recalled being told by police not to struggle. Nevertheless, she did struggle. The respondent said her hair was pulled and she was forced to the ground. The respondent denied deliberately biting Senior Constable Robinson. The respondent testified that while on the ground her left arm was twisted, causing her pain. She said that she pulled her right arm free and flung it back once. The respondent said she was uncertain if it connected with anyone. Her testimony was that she flung her right arm to stop being hurt, although she also said she did not intend to strike Senior Constable Robinson.
54 The prosecutor delivered a brief opening address. As to counts 2 and 3, the prosecutor said:
Mr Gourlay continued behaviour that he had been engaging in earlier, that of punching walls and other objects in the vicinity, in particular a sign, and when he did that, the police ran up and attempted to arrest him. While they were taking control of him, the accused lady ran up and began interfering in that process and was also being told that she was under arrest and a short but fairly violent struggle ensued.
In the course of that struggle, the accused lady bit a police officer, a Kelly Simone Robinson, on the inner thigh, hard, but not sufficiently hard to break the skin. It did, however, leave extensive bruising and arguably detached a piece of the upper skin, your Honour in due course will see some photographs of that. The - that wasn't the end of the struggle, it continued for a few more seconds and in the course of it, the continuing struggle, the accused also struck Constable Robinson with her elbow to the facial area and that blow caused bruising of the face and the struggle as a whole left the constable with some soft tissue injuries to the neck region.
It is, in our case, both of those assaults which constitute this charge [count 3] and it is both sets of bodily injury which constitute this charge (blue AB 83).
55 After the prosecutor had completed his opening address, defence counsel sought particulars of the charges. In relation to count 2, defence counsel requested particulars of:
(a) the identity of the police officer said to have been obstructed; and
(b) what part of his or her official duties that officer was performing at the time of the alleged obstruction.
The obstruction comes to this. There are a number of police officers who were obstructed. They were obstructed at the precise point of time and within a minute or two following this point of time when the police attempted to arrest the boyfriend Gourlay. The obstruction consisted of pushing a Constable Pracy in the chest area while she was endeavouring to apprehend Gourlay and it consists of a - just following immediately afterwards, there's no delay or anything in it - consists of resisting Constable Robinson, struggling with Constable Robinson while Constable Robinson was attempting to arrest the accused. And these matters all occurred within the space of 30 seconds to 2 minutes.
57 After further discussion, the prosecutor said that the charge of obstruction would 'proceed on the basis of the push to Constable Pracy ...' (blue AB 90). The learned magistrate made an endorsement on the prosecution notice identifying Constable Pracy as the person who was allegedly obstructed.
58 With respect to count 3, defence counsel claimed that as the prosecution had opened on the basis that the respondent had assaulted Senior Constable Robinson more than once and had inflicted multiple injuries upon her, the charge was 'vulnerable to the criticism of being lately [sic: latently] duplicitous' (blue AB 91). Defence counsel asserted that the matter was of importance because the defence might argue that 'at particular moments in time [during the incident with Senior Constable Robinson] the lawfulness of the [officer's] actions might be vulnerable to challenge' (blue AB 92).
59 In the end, the learned magistrate did not consider count 3 to be duplicitous, but what is clear from the exchange between counsel and the bench is that the question of the lawfulness of Senior Constable Robinson's actions was, from the outset, in issue.
60 In his closing address, the prosecutor concentrated his attention upon count 3.
61 As he perceived it, the 'only defence' raised by the defence was whether the respondent had deliberately bitten Senior Constable Robinson as opposed to some accidental contact between Senior Constable Robinson's leg and the respondent's teeth (blue AB 492). The prosecutor submitted that the respondent's explanation was 'inherently implausible' (blue AB 495, 499). The prosecutor submitted that the learned magistrate should accept Senior Constable Robinson's evidence that she had been punched in the face.
62 In the course of the submissions, the learned magistrate raised with the prosecutor the lawfulness of the arrest of Mr Gourlay. In effect, the learned magistrate put to the prosecutor that Constable Sutton's tackle of Mr Gourlay was an excessive use of force (blue AB 502). The prosecutor sought to justify that conduct.
63 In anticipation of an argument to the effect that the arrest of the respondent was unlawful because she was not informed of the reason for her arrest, the prosecutor submitted that:
There was clearly no opportunity in any realistic sense to tell her 'I am arresting you. Here are your CIA [Criminal Investigation Act] rights' (blue AB 503).
64 Defence counsel identified 'the key issue' as being the 'lawfulness of the police conduct in relation to these purported arrests' (blue AB 504).
65 Defence counsel submitted that Constable Sutton unlawfully assaulted Mr Gourlay and that the respondent was entitled to prevent Constable Pracy from, in effect, assisting Constable Sutton in his unlawful arrest (blue AB 509).
66 Defence counsel, unlike the prosecutor, was alive to Senior Constable Robinson's evidence that her intention was to arrest the respondent for disorderly conduct. While the prosecutor had not specifically addressed this issue, defence counsel did. He submitted:
Not a soul, apart from her [Senior Constable Robinson], said that [the respondent] was going to be arrested. That's why they were running up the street. Everyone was after Gourlay. And you must, in my submission, question whether in fact this officer is in fact, to use the vernacular, covering her own backside in giving this testimony.
67 Defence counsel further submitted that if Senior Constable Robinson's intention was to arrest the respondent for disorderly conduct, she did not inform her of the reason for the arrest. Defence counsel said:
Why then didn't she utter a single word to [the respondent]? You are under arrest. Stop. You are under arrest. Go on the ground. Instead, it was just no, let us just do what Mr Sutton did. We will clean her up too. And that's precisely what they did (blue AB 515).
68 Defence counsel then cited the House of Lords decision, Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 and submitted that Senior Constable Robinson's arrest of the respondent was unlawful because she did not inform her (the respondent) of the reason for that arrest at the time it was effected. Defence counsel submitted that there was no justification for that failure. Defence counsel put it this way:
Why couldn't she [Senior Constable Robinson] say 'You're under arrest for obstruction - you're under arrest for disorderly'? The fact that nothing is said to her until the end when she is under arrest for disorderly and, according to Robinson, disorderly and assaulting a public officer - in fact that's my recollection of Robinson's testimony - leaves this whole issue of there being some obstruction that Robinson saw as being, in fact, a complete impossibility (blue AB 523).
69 Defence counsel submitted that Constables Sutton and Manfroni acted unlawfully by using excessive force to effect the arrest of Mr Gourlay; the respondent was entitled to obstruct Constable Pracy in order to prevent her joining in the unlawful assault on Mr Gourlay; as all of the police officers were intent upon assisting Constables Manfroni and Sutton in Mr Gourlay's arrest they were all acting unlawfully; Senior Constable Robinson did not arrest the respondent for disorderly conduct; alternatively, if she had arrested the respondent for this offence, this arrest was unlawful because she did not inform the respondent of the reason for the arrest.
70 Defence counsel submitted that it was physically difficult, if not impossible, for the respondent to have bitten Senior Constable Robinson. He further submitted that the respondent did not deliberately strike her.
71 In relation to count 2, the learned magistrate identified the issues to be decided as whether the respondent pushed Constable Pracy and thereby obstructed her and, if so, whether Constable Pracy was, at the time, acting in the execution of her duty.
72 In relation to count 3, the issues identified by the learned magistrate were whether the respondent assaulted Senior Constable Robinson, and, if so, whether she was acting in the execution of her duty at the time and whether she sustained bodily harm.
73 As to count 2, the learned magistrate found that Constable Sutton's use of force to effect the arrest of Mr Gourlay was more than was reasonably necessary in the circumstances and was unlawful. He found that Constable Sutton was, at that point, not acting in the execution of his duty. Once Constable Manfroni joined in Constable Sutton's purported arrest, those actions 'were tainted by the same brush'.
74 The learned magistrate found that Constable Pracy's intention 'at all times' was to assist Constables Manfroni and Sutton in their arrest of Mr Gourlay. He said that Constable Pracy was 'tainted with the same brush as Sutton' and was not acting in the performance of her duty when she was pushed by the respondent. Accordingly, the respondent could not have been found guilty of count 2 'at that point'. The learned magistrate found that the respondent having seen Mr Gourlay on the ground and being assaulted did not, in pushing Pracy away, obstruct her. This finding was made despite the absence of evidence from the respondent to that effect.
75 As to count 3, the learned magistrate accepted the evidence of Senior Constable Robinson concerning the respondent's arrest. In effect, the learned magistrate found that the respondent behaved in a disorderly manner as she walked towards Kings Square and that Senior Constable Robinson was entitled to arrest her for that offence. The learned magistrate found that Senior Constable Robinson acted upon that intention and accordingly arrested the respondent. She did not see how Gourlay was dealt with by Constables Manfroni and Sutton, nor did she act intending to assist Constable Pracy in the arrest of the respondent for obstruction. He found that Senior Constable Robinson was acting in the execution of her duty when she took hold of the respondent.
76 The learned magistrate said that the respondent was hysterical and found that she resisted the lawful actions of Senior Constable Robinson. In doing so, she deliberately bit and then punched the police officer twice, inflicting bodily harm. He held that, although it would have been desirable for Senior Constable Robinson to have uttered the words, 'You're under arrest for disorderly' when she took hold of her, by taking hold of the respondent and telling her to stop resisting, the respondent was nevertheless made aware that she was under arrest (blue AB 554). Once Senior Constable Robinson had subdued the respondent, she was told she was under arrest for assaulting her and disorderly conduct.
77 The grounds of appeal before the primary judge were as follows:
78 Ground 2 was added at the hearing of the appeal.
79 In his consideration of ground 1, his Honour took the learned magistrate's findings of fact to be:
81 The critical question posed by the primary judge was 'whether Senior Constable Robinson effected a lawful arrest for the offence of disorderly conduct or merely joined in the unlawful arrest of Constable Pracy' [12].
82 In his Honour's opinion, even if Senior Constable Robinson had the power to arrest the respondent for disorderly conduct and sought to do so, her arrest was unlawful and she was not, at the time of the assault, performing a function of her office. Accordingly, the respondent could not be found guilty of count 3 and ground 1 must be upheld.
83 His Honour ruled that Senior Constable Robinson's arrest of the respondent was unlawful because she did not comply with the common law requirement that ordinarily a police officer must inform the person being arrested of the reason for the arrest (the requirement). His Honour cited Christie v Leachinsky and a number of Australian authorities to explain the requirement and its exceptions.
84 His Honour regarded the need for Senior Constable Robinson to comply with the requirement as significant on the facts of this case because:
... Senior Constable Robinson's conduct is so bound up with the arrest and restraint by Constable Pracy that it is not possible to say that she was acting in the course of her duty for the distinct reason that she was effecting a separate arrest for disorderly conduct, unless the circumstances made it clear to the appellant that Senior Constable Robinson was effecting an arrest for disorderly conduct rather than assisting Constable Pracy. The circumstances are to be viewed objectively [17].
85 In ruling that Senior Constable Robinson had not complied with the requirement, his Honour acknowledged that Senior Constable Robinson informed the respondent of the reason for her arrest after the respondent had been taken to the ground and subdued. Although his Honour did not articulate precisely when Senior Constable Robinson was obliged to notify the respondent of the reason for her arrest, I infer from his Honour's reasons that he regarded the requirement as having to be discharged prior to or at the moment of arrest: see [17] and [19]. The primary judge was plainly of the view that by the time the respondent was told of the reason for her arrest, it was too late.
86 His Honour considered two of the exceptions to the requirement. He held that they did not arise on the facts. He said:
(a) the circumstances of Senior Constable Robinson's arrest did not make it obvious that she was arresting the respondent for disorderly conduct [18]; and
(b) it was not practically impossible for Senior Constable Robinson to inform the respondent of the reason for her arrest by reason of the respondent running away or counter-attacking [19].
87 With respect to ground 2, his Honour said that the prosecution case was never put on the basis that there were separate arrests by Constable Pracy and Senior Constable Robinson. Accordingly, the case found by the magistrate was different to that presented by the prosecution. In effect, his Honour found that the respondent had been denied procedural fairness.
88 The appellant relies on two grounds of appeal as follows:
(a) The arrest of the respondent by Constable Pracy was not unlawful and the respondent was not entitled to resist it.
(b) Senior Constable Robinson was entitled to arrest the respondent.
(c) The arrest effected by Senior Constable Robinson was lawful as it was separate from, and independent to, the actions of other officers.
(d) Informing a person of the reasons for their arrest is not a necessary pre-condition to a valid arrest.
(e) The circumstances of this particular case did not require that Senior Constable Robinson tell the respondent that she was under arrest before the respondent was restrained.
(a) The respondent was provided with sufficient knowledge of the case brought by the prosecution to adequately understand and answer the case.
(b) The prosecution proved, and the magistrate found, the elements of the charge proven beyond reasonable doubt.
(c) The reasoning of the magistrate was consistent with the case put by the prosecution.
(d) The findings of the magistrate, viewed in light of the way in which the case was conducted, did not occasion any unfairness to the respondent.
89 Leave to appeal has been granted in respect of these grounds.
Ground 1 - was Senior Constable Robinson performing a function of her office?
90 Ground 1 must be decided against the backdrop that:
(a) the appellant does not challenge the learned magistrate's finding that Constable Pracy's actions were 'tainted' to the extent he described; and
(b) the respondent does not challenge the learned magistrate's finding that Senior Constable Robinson acted with the separate intention of arresting the respondent for disorderly conduct and that she had the power to do so.
91 The primary judge held that Senior Constable Robinson's arrest of the respondent was unlawful. He did so because Senior Constable Robinson failed to comply with the requirement. The real issue raised by ground 1 is whether, in so holding, his Honour was correct.
92 Underpinning his Honour's reasoning is his assumption that Senior Constable Robinson's arrest of the respondent was subject to the requirement. By ground 1, the appellant challenges this assumption.
93 The appellant contended that the requirement has been abrogated by provisions in the Criminal Investigation Act 2006 (WA) (CIA). Instead, the CIA provides an arrested suspect with the right to be informed of the offence for which he or she has been arrested (s 138(2)(a)) and confers a duty upon the officer in charge of the investigation to inform the arrested suspect of that right as soon as practicable after the arrest (s 138(3)(b)).
94 The respondent contended that the requirement has not been abrogated and the right and concomitant duty in s 138 of the CIA are in addition to the requirement.
95 Alternatively, the appellant submitted that Senior Constable Robinson's arrest was lawful, even if it was subject to the requirement. On the other hand, the respondent submitted that if the requirement applied, it was not complied with and Senior Constable Robinson's arrest was unlawful, at least at the time the respondent assaulted her.
96 In order to resolve the parties' contentions, it is necessary to set out the relevant common law principles and to properly construe the applicable provisions of the CIA.
97 At common law, an arrest occurs whenever it is made plain by what is said or done by the person making the arrest that the suspect is no longer at liberty. While some kind of touching or restraint is often used, it is not required. No formal words of arrest are needed. What must be done depends on what is reasonable in all of the circumstances: Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503 [16] - [17] (Pullin JA, McLure P & Mazza J agreeing) and R v O'Donoghue (1988) 34 A Crim R 397, 401 (Hunt J, Carruthers & Wood JJ agreeing).
98 In this case the respondent appreciated that when she was restrained by Senior Constable Robinson and others she was no longer at liberty.
99 At common law it has long been recognised that, subject to certain exceptions, a person effecting an arrest must notify the person sought to be arrested of the reason for it. The seminal case is Christie v Leachinsky.
100 Christie v Leachinsky was a case where the respondent was arrested by police officers who professed one reason for the arrest when in fact they had in mind another reason. In that case, Viscount Simon set out five general propositions:
The above citations, and others which are referred to by my noble and learned friend, Lord du Parcq, seem to me to establish the following propositions. (1.) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4.) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5.) The person arrested cannot complain that he has not been supplied with the above information as and when he should be if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter (587 - 588).
101 The opinions of their Lordships vary somewhat as to the rationale for the rule. Viscount Simon thought that for a suspect to be arrested without explanation would be 'contrary to our conceptions of individual liberty'. More practically, he said that notice would give the suspect the opportunity of taking measures which 'may save [the suspect] from the consequences of false accusation' (588); see also Lord Simonds (592). Lord du Parcq justified the rule on the basis that unless a suspect is told the reason for the arrest, he or she cannot be expected to submit to it or be blamed for resistance (598).
102 A suspect need not be provided with details of the charge such as may be contained in a prosecution notice or indictment: Lord du Parcq (604). It is sufficient for the suspect to be told the act for which he or she is arrested: Lord Simonds (593). As Viscount Simon said, the suspect need not be informed of the charge by 'technical or precise language' and that ultimately it is sufficient for the suspect to be informed of the substance of why he or she has been arrested.
103 As to when a suspect must be told the reason for his or her arrest, it may be accepted that notice given prior to or 'at the time of arrest' is sufficient: Lord Simonds (593). Lord du Parcq considered it a correct statement of a police officer's duty to inform the suspect at the 'earliest reasonable moment' or 'within a reasonable time of the arrest' (600).
104 The opinions in Christie v Leachinsky speak of a number of exceptions to the notice requirement. Among them are circumstances where a suspect must know why he or she is being arrested or when, because of the suspect's conduct, it is not practical to do so.
105 Where a police officer fails to comply with the notice requirement and is not excused by any exception to it, all of the Law Lords, apart perhaps from Lord du Parcq, accepted that the suspect may resist the arrest: Glanville L Williams, Requisites of a Valid Arrest [1954] Crim LR 6, 18.
106 Christie v Leachinsky reflects the common law in Australia: Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 [25] - [26] (Priestley JA, Sheller & Beazley JJA agreeing). There are many cases in Australia in which the principles contained in Christie v Leachinsky have been applied. Some recent examples include Johnstone v New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422; Police v Dafov [2008] SASC 247; (2008) 102 SASR 8 and State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125.
The position in Western Australia - the Criminal Code
107 The requirement has been the subject of statutory modifications of varying kinds in the United Kingdom (see, for example, s 28(3) and s 28(4) of the Police and Criminal Evidence Act 1984 (UK)) and Australia. Putting to one side the possibility of its revival under the CIA, the requirement has not been part of Western Australian law since at least 1914.
108 From the commencement of the Criminal Code on 1 January 1914 until its repeal on 1 July 2007 by the Criminal Investigation (Consequential Provisions) Act 2006 (WA), s 232 provided:
It is the duty of a person executing any process or warrant to have it with him, and to produce it if required.
It is the duty of a person arresting another, whether with or without warrant, to give notice, if practicable, of the process or warrant under which he is acting or of the cause of the arrest.
A failure to fulfil either of the aforesaid duties does not of itself make the execution of the process or warrant or the arrest unlawful, but is relevant to the inquiry whether the process or warrant might not have been executed or the arrest made by reasonable means in a less forcible manner.
109 Thus, under s 232 of the Criminal Code, in relation to an arrest without warrant, the law in Western Australia was that it was the duty of a person arresting another to, if practicable, give notice of the cause of the arrest. Significantly, failure to fulfil this duty did not, of itself, render the arrest unlawful. The failure was, however, relevant to the reasonableness of the means employed to effect the arrest.
110 The Criminal Investigation (Consequential Provisions) Act also amended s 231 of the Criminal Code by, in effect, inserting s 231(2). The section reads as follows:
(1) It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.
(2) In determining whether any process or warrant might have been executed, or any arrest made, in a less forcible manner, the following shall be taken into account -
(a) whether the person executing the process or warrant had it with him or her and produced it at the time;
(b) if it was practicable to do so at the time, whether the person making an arrest, whether with or without a warrant, gave notice of the process or warrant under which the person was acting or of the cause of the arrest.
111 The effect of s 231(2)(b) in the context of an arrest is as follows. It is relevant to the question of whether an arrest might have been made in a less forcible manner to consider, so far as it was practicable to do so, whether notice was given of the cause of the arrest. The clear implication of this provision is that failure to give notice does not make the arrest unlawful. Thus s 231(2)(b) is inconsistent with the existence of the requirement in this State.
112 The provisions of the CIA with which this appeal is concerned commenced operation on 1 July 2007. The CIA is the primary source of police powers in Western Australia: Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [118] (Blaxell J).
113 The general power of arrest is contained in s 128 of the CIA. The basis upon which the power is to be exercised differs according to whether the person to be arrested is reasonably suspected of committing a serious or non-serious offence. A serious offence is defined to include an offence the statutory penalty for which is, or includes, imprisonment for 5 years or more or life: CIA s 128(1)(a).
114 At the time the respondent allegedly committed count 3, Senior Constable Robinson was seeking to arrest her for the offence of behaving in a disorderly manner in public. It is a non-serious offence because it carries a maximum penalty of a fine of $6,000. The power to arrest in respect of such offences is set out in s 128(3) of the CIA. Relevantly, it provides:
...
(3) A police officer or a public officer may arrest a person for an offence that is not a serious offence if the officer reasonably suspects -
(a) that the person has committed, is committing, or is just about to commit, the offence; and
(b) that if the person is not arrested -
...
(ii) the person will continue or repeat the offence; or
(iii) the person will commit another offence; or
115 The term 'reasonably suspects' is defined in s 4 in this way:
... a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable.
116 Once a person is placed under arrest, that person is conferred with the rights set out in s 137(3) and s 138(2) of the CIA. The rights in s 137(3) and s 138(2)(b), s 138(2)(c) and s 138(2)(d) are irrelevant for present purposes. However, the right in s 138(2)(a) is relevant. It states:
...
(2) In addition to the rights in section 137 an arrested suspect is entitled -
(a) to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
117 An arrested suspect is defined in s 138(1) to be, relevantly:
(1) In this section -
arrested suspect means a person who is under arrest having been arrested -
(a) under section 128, under an arrest warrant, or under another written law, on suspicion of having committed an offence; or
118 Section 138(3) states that the person who has the duty to afford a suspect his or her rights under s 137 and s 138(2) is the officer in charge of the investigation. That duty must be discharged 'as soon as practicable after the arrest'.
(1) Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2) If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3) If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.
120 It is plain from the text of s 7 and a reading of the CIA as a whole, that the Act does not codify all of the powers, duties and responsibilities of a police officer. For example, as was observed in Cox [16], the CIA does not specify how an arrest is to be effected.
121 The explanatory memorandum to the original Criminal Investigation Bill 2005 (WA) gives an opposite impression; that is, that the Bill was intended to codify common law police powers. The reason for this contradiction is not readily apparent. Clause 7 (which was later enacted as s 7) remained unamended in all three versions of the Bill that were presented to Parliament.
122 The effect of s 7(1) is to confer upon a police officer the powers, duties and responsibilities of a constable under common law. If the CIA confers a power, duty or responsibility that the officer also has at common law, that power, duty or responsibility must be performed in accordance with the CIA: s 7(2). If there is an inconsistency between a provision of the CIA and a power, duty or responsibility that a police officer has under the common law, the CIA provision prevails. I understand an inconsistency for the purpose of s 7(3) to mean a direct inconsistency or an inconsistency in the sense that a provision covers the field.
123 As I have pointed out, s 128(3) confers upon a police officer the power to arrest a person for a non-serious offence. The conferral of this power is conditioned upon the officer having a reasonable suspicion (as defined in s 4) of the matters in s 128(3)(a) and any one or more of the matters in s 128(3)(b). Once these conditions are met, the power to arrest is enlivened; nothing more is required. Unlike the common law, the power in the CIA to arrest is not conditioned upon a requirement to give the suspect notice of the reason for the arrest.
124 The CIA power of arrest does not stand alone. Although notice is not a requisite to a valid arrest under s 128 of the CIA, an arrested suspect has a right to be informed of the offence for which that person has been arrested. That right extends to any other offence which the person is suspected to have committed. The duty to provide that right is conferred upon the officer in charge of the investigation. Importantly to this case, the right arises after the suspect has been arrested and the duty must be performed as soon as practicable after the arrest. It follows from this (and from the definition of 'arrested suspect' in s 138(1)) that the right and duty under discussion arises only after the arrest of a suspect. What is 'as soon as practicable after an arrest' requires an objective analysis of all of the relevant circumstances surrounding the arrest. In this regard, I observe that the officer in charge of an investigation is not necessarily the arresting officer and may not have been present at the time of the arrest.
125 A question for consideration is what is meant in s 138(2)(a) by the word 'offence' and what the officer must do to inform the suspect of the offence for which he or she has been arrested.
126 The word 'offence' is defined in s 3 of the CIA as 'any offence under a written law'. The appellant submitted that 'offence' in s 3 of the CIA should be understood as having the meaning in s 2 of the Criminal Code; that is, 'An act or omission which renders the person doing the act or making the omission liable to punishment'. I do not accept this submission. The word 'offence' in s 3 of the CIA applies to all offences created under a written law in this State and is not restricted to offences in the Criminal Code. The use of the word 'offence' does not lead to the conclusion that it is necessary to describe the offence in technical or legal terms. What is required is that the officer inform the suspect of the offence for which he or she has been arrested. That may be conveyed in a non-technical or even colloquial way. The precise content of what is required will depend, in any given case, upon an objective appraisal of all of the relevant circumstances.
127 In my opinion, s 128 and s 138 of the CIA, when read together, provide a scheme which sets out the power to arrest, the rights of a suspect once arrested and the duty of police to provide those rights. The power to arrest is not conditioned upon the giving of notice of the offence prior to or at the time of the arrest. The right to be informed of the reason for the arrest occurs after it has been effected. The duty to inform the suspect is cast upon the officer in charge of the investigation to be carried out as soon as practicable after the arrest. Having regard to s 7 of the CIA, these provisions are inconsistent with the requirement in that they cover the field and must prevail over the relevant common law powers, duties and responsibilities of a police officer.
128 It follows from this construction that the respondent's submission that the requirement has, in effect, been revived since the repeal of s 232 of the Criminal Code and the commencement of the relevant provisions in the CIA must be rejected. Although my construction of the CIA is driven by the text, I observe that, having regard to the statutory history I described earlier, it would be highly unlikely that Parliament intended to revive the notice requirement and confer the additional right and duty in s 138 of the CIA.
129 His Honour decided ground 1 of the appeal before him on the basis that the respondent's arrest was subject to the requirement. With great respect, his Honour was incorrect to so hold, although, in fairness, no contrary submission was put before him. Having regard to the proper construction of the CIA, the requirement is not a requisite of a lawful arrest. On the facts as found by the learned magistrate, Senior Constable Robinson's arrest of the respondent was lawful. Senior Constable Robinson had ample grounds for suspecting that the respondent had committed the offence of behaving in a disorderly manner in public. Those grounds, judged objectively, were reasonable. It is plain that the respondent had committed, and was indeed continuing to commit, this offence. It is equally as plain that, if she was not arrested, the respondent would continue to commit the offence. By arresting her, Senior Constable Robinson was acting in the performance of her office or employment as a police officer. The respondent bit and struck her in the course of the lawful arrest. All of the elements of the offence under s 318(1)(d) of the Criminal Code were established.
130 It is clear that the primary judge's decision was influenced by his understanding that the learned magistrate had found that Constable Pracy's arrest of the respondent was unlawful. In fact, as the appellant submitted to this court, the learned magistrate did not make such a finding. Whether or not Constable Pracy's arrest of the respondent was unlawful does not, having regard to the provisions of the CIA and the facts of this case, affect the lawfulness of Senior Constable Robinson's arrest.
The appellant's alternative argument - the arrest complied with the common law notice requirement
131 It is, strictly speaking, unnecessary to decide the appellant's alternative argument that even if Senior Constable Robinson's arrest was subject to the requirement, it was nevertheless a lawful arrest. However, in case my earlier conclusion is wrong, I will deal with this argument.
132 The respondent admitted that she behaved in a disorderly manner in public. The learned magistrate found that she was hysterical and 'out of control'. Those findings were completely justified, having regard to the testimony of those who witnessed it and the testimony of the respondent herself. Her attitude towards the police immediately prior to her arrest was abusive, defiant and obstructive. Her obstructive behaviour was illustrated by her actions in attempting to prevent Constables Sutton and Manfroni from approaching Mr Gourlay before Constable Sutton arrested him. Senior Constable Robinson's attempt to arrest her was met with immediate and violent resistance. It took three police officers to subdue her. Once she was brought under control she was told of the reasons for her arrest. These events all occurred in a very brief period of time.
133 If Lord du Parcq's statements as to timing are accepted, having regard to these circumstances, the respondent was notified of the reason for her arrest 'within a reasonable period of time'.
134 In any event, at least one of the two recognised exceptions to the notice requirement applied in this case. First, the respondent's hysterical and violent behaviour was such that, until she was subdued, it was practically impossible for Senior Constable Robinson to immediately inform the respondent of the reason for her arrest. Further, in my opinion, it must have been obvious to the respondent that she was being arrested for her disorderly conduct.
135 Were it necessary to do so, I would have upheld the appellant's submission that the arrest was not contrary to the common law notice requirement.
136 One of the arguments relied upon by the respondent in this court to support the submission that Senior Constable Robinson was not acting in the performance of her duty was that her actions were 'tainted' by the unlawful actions of Constables Sutton and Pracy. In support of this submission the respondent cited Cumberbatch. Cumberbatch was referred to by the primary judge in his reasons [10]. The respondent's counsel submitted that the facts of Cumberbatch were 'very much on all fours with the instant case' (AB 28).
137 I will deal with this argument, accepting that Constable Sutton acted unlawfully and assuming in favour of the respondent that Constable Pracy's arrest for obstruction was also unlawful.
138 In truth, the case is distinguishable on its facts from the present case. In Cumberbatch, the appellant's father was arrested under s 136 of the Mental Health Act 1983 (UK). He was taken to a public place where a police vehicle was waiting. At the vehicle, the appellant's father was told, in crude terms, by one of the officers to lower his head. At this point the appellant became upset and started pushing at the policeman who was holding her father and remonstrated with the officers for showing a lack of respect. PC Richardson, who was accompanying those carrying out the arrest, moved forward to restrain the appellant by taking hold of her arms and moving her away from the immediate vicinity. The appellant then lunged at her and inflicted an injury upon PC Richardson. In the court below, it was assumed that the arrest of Mr Cumberbatch was unlawful. The question on appeal was whether PC Richardson was acting in the execution of her duty.
139 Jones J (with whom Laws LJ agreed) found that, to the extent that PC Richardson was acting as part of a team arresting or detaining Mr Cumberbatch, she was not acting in the course of her duty because his arrest was taken to be unlawful. However, the court below had found that PC Richardson was not solely assisting in the furtherance of Mr Cumberbatch's arrest when she was assaulted. It concluded that Ms Cumberbatch was behaving in a way as to present a clear risk of violence or a breach of the peace. Jones J found that PC Richardson was 'so bound up with' the arrest and continuing detention of Mr Cumberbatch that it was not possible to say that she was acting in the course of her duty for the distinct reason that she was preventing an actual or threatened act of breach of the peace.
I readily accept that if there had been an independent, free-standing breach of the peace, the position would be different, but that was not the case here.
141 Unlike the actions of the police officer in Cumberbatch, the actions of Senior Constable Robinson were not 'indissolubly linked' or 'so bound up' with Mr Gourlay's arrest. On the facts as found by the learned magistrate, which were not challenged before the primary judge or in this court, Senior Constable Robinson did not see and was not involved in the arrest of Mr Gourlay. Her decision to arrest the respondent was solely because of the respondent's disorderly behaviour, which was committed before Constables Sutton, Manfroni and Pracy acted in relation to Mr Gourlay. Further, Senior Constable Robinson did not act to assist Constable Pracy in her arrest of the respondent for obstruction. The respondent was, to use the language of Jones J in Cumberbatch, engaged in 'an independent, free-standing breach of the peace'.
142 The primary judge expressed the contrary opinion when he said that 'Senior Constable Robinson's conduct is so bound up with the arrest and restraint by Constable Pracy that it is not possible to say that she was acting in the course of her duty for the distinct reason that she was effecting a separate arrest for disorderly conduct' [17]. The use of the expression 'so bound up with' echoes that used by Jones J in Cumberbatch.
143 With respect, his Honour's opinion is erroneous because it is contrary to the unchallenged findings of the learned magistrate that Senior Constable Robinson's conduct was separate from that of the other officers.
144 The respondent's submission that Senior Constable Robinson's conduct was 'tainted' is rejected.
145 Ground 1 must be upheld. Unless ground 2 succeeds, the appeal must be allowed.
146 The appellant challenges the conclusion reached by the primary judge that the respondent was not accorded procedural fairness.
147 A key part of the primary judge's reasoning in support of this conclusion was that:
If the appellant had notice that it might be found that Senior Constable Robinson effected an arrest independently of Constable Pracy rather than joining in the arrest by Constable Pracy, then the defence may have been conducted differently. In particular, the cross-examination of Senior Constable Robinson may have been directed to that issue. Furthermore, in closing counsel for the appellant may have sought to persuade the magistrate [the senior constable's] actions in seizing hold of the appellant was so bound up with the actions of Constable Pracy in seizing hold of the appellant that it could not be found that Senior Constable Robinson effected a separate lawful arrest and hence that Senior Constable Robinson was acting in the execution of her functions even if it was found that Constable Pracy was not [29].
148 The appellant submitted that the proceedings were procedurally fair. The appellant contends that Senior Constable Robinson was cross-examined as to whether she had effected an arrest independently of Constable Pracy and that defence counsel addressed the point in his closing address. The respondent submitted that his Honour was correct essentially for the reasons that he gave.
149 As the primary judge said, procedural fairness does not normally require a magistrate to disclose his or her proposed findings and give the parties the opportunity to make further submissions on them [28]. His Honour was also correct to observe that procedural fairness may require a magistrate to hear the parties further if certain matters emerge in his or her consideration of the case after trial which the magistrate regards as potentially dispositive, but which the parties did not have the proper opportunity to address at trial: see McKay v Commissioner of Main Roads [2013] WASCA 135 [156] - [158] (Murphy JA, with whom Martin CJ & Buss JA agreed). Questions of procedural fairness ultimately involve matters of degree and judgment. They are not susceptible to hard and fast rules and the forensic context in which such questions fall to be determined is relevant: McKay [158].
150 Earlier in these reasons I surveyed the course of the trial. The respondent was provided with the prosecution brief and other documents which amounted to full disclosure of the case against the respondent. No complaint has been made in this respect, nor could there be any in the circumstances. Having regard to the way in which the respondent's counsel opened and closed her case, it was patent that, in respect of count 3, the element of whether Senior Constable Robinson was performing a function of her office or employment at the time she was assaulted was in issue.
151 Senior Constable Robinson testified, in effect, that she arrested the respondent for disorderly conduct. Her testimony was that she had formed that intention before Constables Sutton and Manfroni had purportedly arrested Mr Gourlay and that she did not arrest the respondent as a result of anything she did in relation to Constable Pracy. The respondent's counsel cross-examined Senior Constable Robinson in respect of this aspect of her evidence:
Who made that decision?---I honestly - I don't recall.
Well, did you make that decision?---Believe that Constable McNamara made a comment saying, 'This can't go on'. I did not say, right, let us go and arrest them.
Right. Well, your evidence-in-chief was that you ran after them, Manfroni, Sutton, Johnson, Pracy and yourself, five officers ran after them. First of all, is that right?---Yes.
And am I right ran after them down the street?---Yes.
And your evidence was, you were doing that for their behaviour. They were extremely disorderly?---Yes.
And you were going to arrest them?---Yes.
All right. Now, your evidence was that you were going to arrest them, either you singularly or in combination with others. Someone must have decided to arrest them?---Are you asking?
Yes, I am?---Well, as I said, Constable McNamara said, 'This can't continue', so in my mind I was of that thought process. I did not go and say, right let us go and arrest them.
Okay. Nor did anyone else?---No.
You just ran after them?---Yes.
And you weren't running after them to separate them for their own protection, were you?---No (blue AB 180).
152 In his closing address, the respondent's counsel specifically addressed and then challenged Senior Constable Robinson's evidence that she formed an intention to arrest the respondent for her disorderly behaviour. He said:
Can I digress from the discussion for a moment to point out something interesting?
Sutton was interested only in arresting Gourlay, so too was Manfroni. They seemed to have formed the decision to arrest him. So too, had Pracy. Seemingly so too had Johnson. All eyes were on the man who [bashed] the sign. All eyes were on the man who it was reported to them by the Sail and Anchor staff had been kicking gates. It was that report and the bash of the sign that prompted them to go running up the street in the first place.
All of them except one [Senior Constable Robinson] intent only on Mr Gourlay. Not one of them uttered an intention to their colleagues; we're going to arrest - but they all said that was what they were doing. All except one and that one was the lady who takes my client to the ground and suffered unfortunate injuries and now seeks to justify, in my submission - now seeks to justify her act in taking Ms Staskos to the ground and we contend that that was an unlawful application of force because either she was not under arrest and there were no grounds of [arrest] or, alternatively, because there was an excessive use of force against Ms Staskos.
And I raise the question, well, exactly what was she arrested for? According to Pracy it's for the obstruction. I've dealt with the obstruction. I might need to come back and develop that argument a little bit more by showing the inconsistencies between people. Obstruction: that was it. Except not for Senior Constable Robinson and let me remind you of two things. Your Honour picked me up a couple of days ago, and I've checked both my notes and the notes of my instructor, about the evidence on the point of trying to get at the police and there was an undercurrent, I suggest, in Robinson's testimony of making these people, Ms Staskos and Mr Gourlay, look as bad as she could and disagreeing with propositions that others didn't baulk at (blue AB 513 - 514).
Not a soul, apart from her [Senior Constable Robinson], said that this lady [the respondent] was going to be arrested. That's why they were running up the street. Everyone was after Gourlay. And you must, in my submission, question whether in fact this officer is in fact, to use the vernacular, covering her own backside in giving this testimony (blue AB 515).
154 Before this court, the respondent's counsel submitted that the cross-examination of Senior Constable Robinson and the submissions he made were directed to the narrow purpose of impugning Senior Constable Robinson's credit.
155 The question of whether a party has been accorded procedural fairness must be answered by an objective analysis of all of the circumstances. In my opinion, counsel's cross-examination went further than merely to attack Senior Constable Robinson's credibility. It also went to the issue of whether Senior Constable Robinson's arrest was lawful, an issue crucial to the determination of whether she was acting lawfully in the performance of her office at the time she was assaulted by the respondent.
156 In my opinion, the respondent was accorded procedural fairness by the learned magistrate. With respect, the primary judge erred in finding to the contrary. Ground 2 must be upheld.
157 Both grounds of appeal have been upheld. The appeal must be allowed. The respondent must now be sentenced in the Magistrates Court for count 3. I would make the following orders:
(2000) 49 NSWLR 78
(2010) 43 WAR 1
(2004) 220 CLR 1
(2008) 102 SASR 8
(2007) 70 NSWLR 125