McLachlan v Mesics

Each of these appeals comes by special leave from the decision of Richardson J. in the Supreme Court on two cases stated by a stipendiary magistrate under s. 101 of the Justices Act, 1902-1965.

Before stating the facts it is convenient to set out the terms of s. 352 (1) (a) of the Crimes Act 1900 of New South Wales. It provides that "(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, and take him, and any property found upon him, before a Justice to be dealt with according to law."

The facts, as found by the magistrate, are these. On the night of 17th January 1964, three uniformed officers of police, Constables Groch, McKenna and the appellant McLachlan, went in the course of their duty to Elizabeth Crescent, Queanbeyan. There a man named Curtis told Groch that he had been assaulted by three men one of whom was the respondent's son (Lazlo Mesics) and that he wished the men to be charged with assault. The officers were proceeding towards a house where the respondent (Gyula Mesics) lived when Lazlo Mesics came out of it. He struck Groch and knocked him to the ground and ran back into the house. He was followed by the officers and a violent struggle took place in the kitchen as a result of which Groch and McKenna finally overpowered Lazlo Mesics and handcuffed him. While this struggle was going on the appellant was guarding the door into the kitchen against two other men who were endeavouring to enter it. While McKenna was grappling with Lazlo Mesics, he saw the respondent, Gyula Mesics, entering the kitchen, holding an axe which was "aimed at Groch's back". McKenna called out to the appellant who at once charged the respondent and both fell to the floor. After a struggle the appellant succeeded in getting possession of the axe and said to the respondent, "You are under arrest for assault". The respondent thereupon seized a beer bottle and the appellant sought to take it from him but in doing so was thrown to the floor. As he tried to regain his feet the respondent seized a water jug, smashed it on a table and holding a shattered piece of it tried to jab it into the appellant's face. The appellant threw up his hand to protect his face and received a cut on the hand. The respondent was finally overpowered and taken to the police station. There two charges were laid against him, one of unlawfully assaulting the appellant whilst in the execution of his duty, an offence under s. 494 of the Crimes Act, the other of resisting the appellant in the execution of his duty, an offence under s. 59 of the Police Offences Act.

At the hearing it appeared that the charges against the respondent were based upon his actions with the beer bottle and the broken water jug after the appellant had told him that he was under arrest and, having found the facts stated above, the learned magistrate acquitted the respondent on each of the charges and in each of the stated cases he asked whether he had erred in law in doing so. Richardson J. held that he had not done so and it is from his decision that these appeals are brought.

The line of reasoning which produced the surprising conclusions reached by his Worship and later by Richardson J. appears to have been to the following effect. The appellant's statement to the respondent that he was arrested for assault referred to the "incident with the axe", as the magistrate described it, and no charges were preferred in respect of that occurrence. Because no such charges were preferred and those which were preferred were based on the happenings which followed the "axe incident", it was to be inferred that when the appellant told the respondent that he was under arrest he then had no intention of charging him with any offence based upon what had occurred immediately before those words were spoken. The arrest was therefore unlawful and the appellant was not at any time thereafter acting in the execution of his duty. Rather he was attempting to make good an illegal arrest.

In the light of the facts as they were found to have existed, the determinations that the respondent was entitled to be acquitted and that the learned magistrate did not fall into any error in law in acquitting him are manifestly incapable of being supported. Plainly the fact that the respondent was not charged with an offence based upon the occurrences leading up to the appellant's telling him that he was under arrest for assault did not warrant the inference that, when the appellant spoke those words, he had no intention of charging the respondent with an offence based upon what had then occurred. Still less would it warrant an inference that the appellant at the time of the arrest had no intention of taking the respondent before a Justice to be dealt with according to law. Such a finding as the magistrate made was not only not justified, but was in the teeth of the clear inference to which the circumstances at the time of the arrest gave rise.

The appeals should be allowed, the orders made by Richardson J. set aside and in lieu thereof it should be ordered that the question asked in each case be answered "Yes" and the matters remitted to the magistrate to be dealt with according to law.

The respondent should pay the costs of the cases stated in the Supreme Court. So far as the costs of the appeals to this Court are concerned we were told that the reasons which led the learned magistrate to decide the cases as he did were not put forward or relied upon by the respondent in argument before him. In all the circumstances, we think there should be no order as to the costs of the appeals to this Court.