Michaels v The Queen

While questions arise concerning the appellant's arrest, the principal issue before the Court is whether the appellant was in lawful custody at the time he escaped. 1. Section 47 was amended by s 15 of the Crimes and Other Legislation Amendment Act 1994 Cth.

On 22 November 1989 Australian Federal Police officers went to the appellant's place of employment. There were five officers. One remained outside and the others, under the command of Det Sergeant Wilson, went into the building. The police were investigating the importation of cocaine which had been impregnated into hammocks and they wanted to question the appellant about that matter.

Detective Wilson asked the appellant some questions about the hammocks, then asked him if he was willing to accompany the officers to police headquarters with a view to asking him further questions there. The appellant said he was prepared to go with the officers. According to Wilson, the appellant was not then under arrest though he had no doubt that, if the appellant had indicated he would not answer questions, he would have arrested the appellant for a breach of the Customs Act 1901 Cth "there and then".

The evidence of the police was that as they moved with the appellant down a corridor into a foyer adjacent to the lifts the appellant hit or pushed the two female officers and struggled with the two male officers. He was handcuffed and taken to the Federal Police headquarters. Although the appellant was not told that he was under arrest Wilson regarded him as being then in police custody and not free to leave. Wilson said that it was his intention, in taking the appellant to police headquarters, to place him under arrest for assaulting the police and also for drug offences. While the appellant did not claim that the particular time and place of his arrest were crucial to the outcome of the appeal, he did argue that he was arrested at the time of the incident in the foyer, whether for assault or drug offences or both [3] .

1. The appellant was later charged with assaulting a member of the Australian Federal Police in the execution of his duty, apparently pursuant to s 64(1) of the Australian Federal Police Act 1979 Cth. The charge was not proceeded with.

The appellant arrived at police headquarters at about 10.45 am. He was placed in an interview room under guard while Det Wilson briefed his superintendent as to what had taken place and also arranged for other officers to carry out certain duties in relation to the suspected drug offences. Wilson then interviewed the appellant from about 11.45 am until 12.20 pm at which time, after obtaining certain admissions, he told the appellant: "I'm going to get some papers ready and you'll be charged with possession of cocaine at Qantas yesterday."

Two police officers remained with the appellant while Det Wilson set about preparing an on-line charge sheet and facts sheets which would be needed on the question of bail, briefing his superintendent further and asking about the outcome of inquiries he had instigated earlier. Wilson's intention was that the appellant would appear before a magistrate at the Central Local Court at 2 pm, the Court being closed between 1 pm and 2 pm [4] . At about 1.20 pm the appellant seized a chair, smashed a double glass window in the interview room and escaped. It is the charge arising out of that incident which is before the Court.

1. In the case of a prosecution for breach of a Commonwealth statute, the practice of the Federal Police was to take the person to be charged to a State police station where the person was formally charged and then to take the person to the Central Local Court.

The appellant was later charged and pleaded guilty to two charges relating to the importation of cocaine.

The Crown relies upon s 210 of the Customs Act 1901 Cth as the basis for the appellant's arrest. That section reads:

(1) An officer of Customs or police may without warrant arrest any person who he has reasonable grounds to believe is guilty of:

(a) committing, or attempting to commit, or of being concerned in the commission of, any offence against section 231 or 233; or

(1a) An officer of Customs or police may, without warrant, arrest a person if he has reasonable ground for believing that the person has committed the offence of assaulting an officer in the execution of his duties.

(2) No person shall resist, obstruct, or prevent the arrest of any person in pursuance of this section.

The appellant does not challenge the lawfulness of his arrest. In particular he does not argue that his being taken into custody was unlawful because its purpose was to question him. The initial detention of the appellant was authorised by s 212 of the Customs Act which reads:

Every person arrested may be detained until such time as he can without undue delay be taken before a Justice.

The appellant could not be convicted of escaping from lawful custody unless he was in custody and that custody was lawful at the time of his escape. That much is obvious. The appellant contends that he was not in lawful custody at the time and he puts that argument in two ways. First, he contends that there had been undue delay in taking him before a justice. Second, he says that whether or not there had been an undue delay he was, at the time, being detained for questioning and that therefore his detention was unlawful. Each argument calls for separate consideration.

So far as s 212 of the Customs Act is concerned, the section recognises that there may be a delay so long as it is not undue. Inevitably there will be an interval of time between the arrest of a person and the bringing of that person before a justice. It may be short or it may be long, depending on the circumstances. In ordinary language that does not necessarily constitute a delay because the term has a pejorative overtone of putting something off. But, as the section and its counterparts have been interpreted over the years, undue delay should be seen as a composite expression which accepts that there may be an interval of time before a person is brought before a justice, so long as the lapse of time which ensues is not excessive in the circumstances. Undue delay has been treated as synonymous with the statutory expressions "as soon as is practicable" in s 34A(1) of the Justices Act 1959 Tas and "without delay" in s 303(1) of the Criminal Code Tas respectively and with the common law expression "as soon as is reasonably possible" [5] .

1. Williams v The Queen (1986) 161 CLR 278 at 300, per Mason and Brennan JJ; at 313, per Wilson and Dawson JJ.

In our view it would have been open to the jury to find that, in terms of the first argument put on behalf of the appellant, there was no undue delay in bringing the appellant before a justice. He was interviewed for a little more than half an hour before he was told he would be charged. It is true that there was a period of about one hour before his questioning began but an explanation was offered for that period and it was one the jury were entitled to accept. Detective Wilson said that it was his intention to take the appellant before a justice at 2 pm when, allowing for the lunch break, he expected one to be available. In all the circumstances the jury might reasonably have concluded that, in terms of the time which had elapsed, there had been no undue delay by 1.20 pm when the appellant smashed the window and escaped.

In putting the matter in this way, we do not want to be taken as suggesting that the trial judge directed the jury by reference to the two arguments put to this Court. Rather, his Honour seems to have run the two arguments together. And so, to an extent, did the Court of Criminal Appeal. Thus, Allen J said [6] :

In the present case it is difficult, indeed in my judgment impossible, to say that the appellant was lawfully under arrest during the time that he was being interrogated by Det Wilson. That was a lengthy interrogation, taking some thirty-five minutes. During that time the detective was not prevented by other duties from undertaking the preparation of paperwork to bring the appellant before the Court. What stopped him was simply that he elected to use the time rather to interrogate the appellant, notwithstanding that he was well aware that he was thereby delaying the appellant being brought before a magistrate. 1. Michaels (1993) 70 A Crim R 78 at 82.

The argument in this Court focused more directly on the holding of the appellant for questioning. In the cross-examination of Det Wilson the following appears:

Q. Mr Wilson, my question is this: you delayed taking this man, Mr Michaels, before a magistrate because you intended to ask him questions, is that correct? A. His appearance was delayed, that is correct, yes.

Q. The sole reason for the delay in his appearance before a magistrate, was your desire as a police officer, to ask him questions, correct? A. That is correct, yes.

As Allen J, with whom Smart and Levine JJ generally agreed while adding some observations of their own, observed, the detective resiled from the position that the delay in having the appellant brought before a justice was attributable solely to his wish to interrogate the appellant and referred to other matters which required his attention [7] . But Allen J said that the Crown's case that at all times reasonable steps were being taken to bring the appellant before the court was "extremely weak". "Indeed", said his Honour, "it is difficult to see that it could be made out at all." 1. Michaels (1993) 70 A Crim R 78 at 80.

On one aspect the law is quite clear. It is unlawful for a police officer to delay taking an arrested person before a justice in order to question the person or to make further inquiries relating to the offence for which the person has been arrested, or to some other offence [8] . If that were all there was to the matter, the inevitable conclusion in all the circumstances would be that the appellant's detention was unlawful and that he therefore could not have escaped from lawful custody. The Court of Criminal Appeal recognised this but Allen J said [9] :

It does not follow, however, that accepting that the detention of the appellant during the time that he was being interrogated by Det Wilson, or indeed at any time before the conclusion of that interrogation and the setting in train of the steps to bring him before the Court, was unlawful, the appellant was not in lawful custody when he made good his escape. That is a distinction the importance of which was recognised at the trial and it is fundamental to the argument for the appellant before this Court. The distinction to which his Honour referred appears from a passage in the trial judge's charge to the jury by way of further directions when he said: Now, this matter was dealt with in the summing up but I direct you, as a matter of law, that a detention which is or which has become unlawful may later become lawful if circumstances change which legitimise the further detention.

Now, in the present case, if you find - and it is a matter of fact for you - that as a fact the police at 1.20 pm on 22 November 1989, the day in question, were taking steps to have the accused brought before the court without undue delay, then you may find that the detention, if it had become unlawful at all, had resumed its lawful purpose at the time the accused went through the window.

At the heart of this passage is acceptance of the notion that a detention which is unlawful may become lawful if at the particular time under consideration (in this case the smashing of the window and the escape) there was an intention on the part of the police to take the person arrested before a justice without undue delay. 1. Williams v The Queen (1986) 161 CLR 278 at 295, per Mason and Brennan JJ; at 305-306, per Wilson and Dawson JJ. 2. Michaels (1993) 70 A Crim R 78 at 80.

The notion of a detention which is unlawful but which may become lawful is to be found in R v Banner [10] . The appellant had been arrested without reasonable cause but, while in custody, gave the police information which justified his arrest on the ground that there was cause to suspect him of having committed a felony. The Full Court (Winneke CJ, Smith and Gowans JJ) held that when the appellant made a confessional statement "the legal situation was changed" [11] . The Court continued:

The police then had reasonable and probable cause for suspecting that the applicant had committed a felony. They, therefore, would have been entitled, had he been at large, to arrest and detain him. And as he was already in custody, though until then unlawfully, they became lawfully entitled to detain him. 1. [1970] VR 240. See also R v Kulynycz [1971] 1 QB 367; Lewis v Chief Constable of South Wales [1991] 1 All ER 206. 2. Banner [1970] VR 240 at 249.

Allen J applied this reasoning in the present case to conclude that "from the moment the police took the steps from 1.20 pm to get him before the magistrate, they were complying with their legal obligations" [12] . There are, as his Honour recognised, some difficulties with this approach. On its face it might render lawful a detention which had taken place over a very long time. But, as his Honour pointed out, the unlawful detention is not therefore legitimised [13] . Any consequences arising from the unlawful detention, such as the admissibility of a confessional statement or a liability in damages for false imprisonment, would not be affected. Those consequences would be determined in the light of a detention which was, at the time, unlawful. But, in terms of escaping from legal custody, the conduct of an accused would be judged according to whether, at the time of escape, his detention was lawful or otherwise. If, at the time, there was an intention on the part of the police to take the accused before a justice without undue delay, then, so the argument goes, there is an escape from lawful custody. The argument must accept that in the case of a lengthy detention the credit of the police in relation to their intention would be vulnerable.

1. Michaels (1993) 70 A Crim R 78 at 83. 2. Michaels (1993) 70 A Crim R 78 at 84.

While the idea that the lawfulness of a detention may fluctuate with the circumstances has the support of authority [14] , in the present circumstances it cannot be divorced from the question of arrest. It has been said in a number of decisions that arrest is a situation or a continuing act and that whether there has been an arrest is a question of fact, and as such not dependent on the legality of the arrest but on whether the person has been deprived of liberty to go where he or she pleases [15] . If a person has been lawfully arrested and the detention of that person ceases to be lawful, then if nothing more occurs the person can hardly be guilty of escaping from lawful custody merely by walking out of the police station. As soon as the person left the police station, he or she could be arrested again for the offence for which the person was originally arrested but there would be no justification for a charge of escaping from lawful custody. Something must happen to make it clear to the person that he or she is not free to leave.

1. R v Kulynycz [1971] 1 QB 367 at 371; Lewis v Chief Constable of South Wales [1991] 1 All ER 206 at 210-211. 2. For instance, Spicer v Holt [1977] AC 987 at 999-1000; Lewis v Chief Constable of South Wales [1991] 1 All ER 206 at 210. See also Van der Meer v The Queen (1988) 62 ALJR 656 at 661; 82 ALR 1 at 18-19.

In the case of the present appellant, there came a time when questioning rendered his detention unlawful. That detention could become lawful so that an escape would be an offence if the officers concerned then formed an intention to take the appellant before a justice without undue delay and he understood that he was under arrest for that purpose. In addressing that issue it does not seem useful to speak in terms of re-arrest but, if the appellant then understood that he was under arrest in order to be taken before the court, his position was no different from what it would have been if he had been formally released from custody and formally re-arrested. The power of arrest conferred by s 210 once exercised is not exhausted by an impermissible delay in detaining the alleged offender. The important consideration is whether it was made clear to the appellant that he was not free to leave because he was to be brought before the court. The evidence of Det Wilson, to which reference was made earlier, is that at 12.20 pm he told the appellant that he was going to get some papers ready and that the appellant would be charged with possession of cocaine. In our view this statement, coupled with the presence of two police officers in the interview room and the appellant's actions in escaping through the smashed window, leaves no doubt that the appellant was, and understood he was, in lawful custody.

However, this is not precisely the way in which either the trial or the appeal to the Court of Criminal Appeal was conducted. The issue in those courts was seen by the parties in terms of whether or not the appellant's detention had resumed its lawful purpose. At the end of the trial and at the request of the Crown the trial judge gave further directions to the jury in the terms referred to earlier in this judgment. The argument before the Court of Criminal Appeal was conducted on the same footing.

While the jury should have been directed that before convicting the appellant they would have to find that he was still under arrest and that he was aware of this, the outcome of the trial could hardly have been different. The verdict of the jury meant that they accepted that at 1.20 pm the police had an intention to take the appellant before a justice without undue delay. Furthermore the trial judge had earlier told the jury that the Crown "must prove a conscious and intentional act of withdrawing from lawful custody on the part of the accused". This direction was given in the context that the appellant claimed to have been pushed out of the window.

There was no denial by the appellant of Det Wilson's evidence that he told the appellant he would be charged and, in light of the trial judge's direction as to resumption of lawful purpose, the jury must have accepted that evidence. It follows that if the jury had been directed that not only must there have been a resumption of lawful purpose but that it must have been made clear to the appellant that he was still under arrest, the jury's verdict would have been the same.

In the circumstances there can have been no miscarriage of justice and we would dismiss the appeal.

The issues and the facts surrounding the appellant's escape from police custody are set out in the joint judgment of Brennan, Deane, Toohey and McHugh JJ. I shall repeat them only to the extent necessary to make clear my reasons for concluding that the evidence cannot safely support a finding that the appellant was in lawful custody at the time of his escape and, hence, his conviction must be quashed.

Although the appellant was arrested for assaulting members of the Australian Federal Police [16] as well as for offences under the Customs Act 1901 Cth (the Act) [17] , the trial was conducted on the basis that his custody was lawful if, and only if, authorised by s 212 of the Act. Section 212, which is concerned solely with persons arrested for offences under the Act, provides:

Every person arrested may be detained until such time as he can without undue delay be taken before a Justice. [18] 1. Apparently pursuant to s 64(1) of the Australian Federal Police Act 1979 Cth. The charge was not proceeded with. 2. The appellant was charged with, and later convicted of, two offences pursuant to s 233B(1)(c) of the Act. 3. "Justice" is defined in s 4 of the Act as meaning "any Justice of the Peace having jurisdiction in the place".

Strictly, the only question that arises under s 212 of the Act is that of delay. This notwithstanding, delay is not the only matter that determines whether a person is in lawful custody following his or her arrest for an offence under the Act. In general terms, there must also have been a lawful arrest [19] and custody must be for the purpose of bringing the arrested person before a justice.

1. Section 210 of the Act provides: "(1) An officer of Customs or police may without warrant arrest any person who he has reasonable grounds to believe is guilty of: (a) committing, or attempting to commit, or of being concerned in the commission of, any offence against section 231 or 233; or (b) committing an offence against section 233B. (1a) An officer of Customs or police may, without warrant, arrest a person if he has reasonable ground for believing that the person has committed the offence of assaulting an officer in the execution of his duties. (2) No person shall resist, obstruct, or prevent the arrest of any person in pursuance of this section. Penalty: $1,000."

The appellant accepts that he was lawfully arrested, but disputes that he was being lawfully held when he escaped. It was argued on his behalf that his custody had become unlawful either because there had already been undue delay or because he was being held solely for the purpose of being questioned. On the other hand, counsel for the respondent, who accepted the finding of the Court of Criminal Appeal that there was a period during which the appellant was detained solely for the purpose of being questioned, argued that there was nevertheless no undue delay or, more accurately, that the jury were entitled to so find. Additionally, it was put that the trial judge correctly directed the jury that if, at the time of the escape, "the police were taking steps to have the [appellant] brought before the Court without undue delay" it was open to them to find that "the detention, if it had become unlawful at all, had resumed its lawful purpose". No distinction was made in the direction between custody that had become unlawful because of delay and custody that was unlawful because it was not for the purpose of bringing the appellant before a justice.

It is necessary to explain why, and to what extent, purpose determines whether a person is or is not in lawful custody. At common law, a police officer is authorised "only to take [a] person [who has been lawfully] arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct route" [20] . It follows that at common law there is no power to hold a person "merely for the purpose of asking questions" [21] . Although there are statutory provisions with respect to arrest and detention in most Australian jurisdictions [22] , they do not necessarily extinguish the rules of the common law.

1. Bales v Parmeter (1935) 35 SR (NSW) 182 at 189. 2. Bales v Parmeter (1935) 35 SR (NSW) 182 at 188. 3. See, eg, s 352 of the Crimes Act 1900 NSW, s 464A of the Crimes Act 1958 Vict, s 137 of the Criminal Code Q, s 271 of the Criminal Law Consolidation Act 1935 SA, s 303 of the Criminal Code Tas.

Personal liberty is the most important and fundamental of all common law rights. And it is well settled that statutory provisions are to be construed as abrogating important common law rights only to the extent that their terms clearly require that course. Nothing in s 212 of the Act requires abrogation of the common law rule that a person may not be detained merely for the purpose of questioning. Thus, as was held in R v Iorlano [23] , it does not authorise delay for the purpose of questioning an arrested person. And, as was held in Williams v The Queen [24] , the same is true of s 34A(1) of the Justices Act 1959 Tas and s 303(1) of the Criminal Code Tas which, respectively, are expressed in terms of the arrested person being brought before a justice "as soon as is practicable" and "without delay".

1. (1983) 151 CLR 678 at 680. 2. (1986) 161 CLR 278 at 295, per Mason and Brennan JJ; at 305, per Wilson and Dawson JJ.

In R v Iorlano and in Williams v The Queen, this Court was primarily concerned with the question whether the statutory provisions then in question had abrogated the common law rule that a person cannot be detained solely for the purpose of being questioned. Neither case was concerned with the manner in which the provision and the common law rule interact. Because the rule is not affected by s 212 or by provisions to like effect, any period during which a person is held solely for the purpose of being questioned is a period of unlawful custody, even if there is no undue delay in bringing that person before a justice. Conversely, once there is undue delay, custody becomes unlawful no matter that the only purpose of detention is to bring the arrested person before a justice.

Just as lawful custody may be transformed into unlawful custody because of undue delay or improper purpose, unlawful custody may sometimes be transformed into lawful custody. Thus, it has been held that custody that is unlawful because the person concerned has not been informed of the reason for his or her arrest [25] or because there were not lawful grounds for arrest [26] , may become lawful for a subsequent period if the information is provided [27] or if reasonable grounds emerge for suspecting that the arrested person committed an offence [28] . And if custody is unlawful because, and only because, its sole purpose is the interrogation of the person arrested, there is no reason in law or logic to prevent it becoming lawful for a subsequent period during which that person is held for the purpose of being brought before a justice.

1. As to this requirement and the various exceptions thereto, see Christie v Leachinsky [1947] AC 573 at 585; R v Kulynycz [1971] 1 QB 367 at 370; R v Stafford (1976) 13 SASR 392 at 399-400. 2. At common law police officers have power to arrest and detain a citizen where they have reasonable grounds for suspecting that an offence has been committed and that he or she is the person who committed it. 3. See R v Banner [1970] VR 240 at 249-250; R v Kulynycz [1971] 1 QB 367 at 371; Lewis v Chief Constable of South Wales [1991] 1 All ER 206 at 210-211. 4. R v Banner [1970] VR 240 at 249-250; R v Kulynycz [1971] 1 QB 367 at 371; Lewis v Chief Constable of South Wales [1991] 1 All ER 206 at 210-211.

As with the questions whether there are reasonable grounds for suspecting that the person arrested committed an offence and whether he or she has been informed of the reason for arrest, purpose can be confined to a particular period or periods and, thus, isolated from periods during which there is no improper purpose. But the same is not true of delay. Delay occurs once a reasonable time has passed for bringing an arrested person before a justice. Once that time has passed, it cannot be retrieved and delay necessarily infects all that follows. Thus, once custody becomes unlawful on account of delay, it remains unlawful until terminated or until the arrested person is brought before a justice.

As already indicated, the trial judge directed the jury that they could find that, if the appellant had been held unlawfully, his custody had become lawful at the time of his escape and did so without differentiating between custody that is unlawful because of delay and custody that is unlawful because of improper purpose. That was a misdirection so far as concerns custody that is unlawful by reason of delay. And it was a serious misdirection. However there is, in my view, another and more serious defect in that the evidence cannot safely support a finding that the appellant's custody was lawful at the time he escaped.

The appellant was arrested at approximately 10.30 am on 22 November 1989 and taken to Federal Police headquarters, arriving at approximately 10.45 am. According to the evidence of the arresting officer, Det McFarland, "two hours would have been sufficient" for the various steps that were then necessary to bring the appellant before a justice: an on-line charge sheet had to be prepared, a process taking approximately fifteen minutes; the appellant had to be taken to the Sydney Police Centre to be charged, a journey of approximately ten minutes; and finally, the appellant had to be taken to the Central Local Court, a journey of another six or eight minutes. However, nothing was done in this regard until some time after 12.20 pm when steps were taken to have the charge sheet prepared.

Detective Sergeant Wilson, the officer in charge of the investigation, gave evidence that, from 10.45 am until 11.45 am, the appellant was detained in custody while he briefed his superintendent and arranged for other officers to undertake other tasks. There was no evidence to suggest that it was necessary for him to attend to these matters before he set the procedures in train that would bring the appellant before a justice. Nor was there evidence to suggest he was the only officer available for that purpose. At 11.45 am, he, Det Sgt Wilson, proceeded to interview the appellant and did so until 12.20 pm. And he admitted in cross-examination that the appellant's appearance at Central Local Court was delayed - and delayed solely so that he could be interviewed.

It was for the prosecution to establish beyond reasonable doubt that there had not been undue delay in the sense that the appellant could not reasonably have been brought before a justice before 1.20 pm when he escaped. Such evidence as there was, was to the contrary. As already indicated, there was evidence that the appellant's appearance before a justice was delayed solely so that he could be questioned, and he was held at police headquarters for two hours thirty-five minutes notwithstanding the evidence that, once he arrived there, two hours were sufficient, if normal procedures were followed, for all steps to be taken to have him brought in due course to Central Local Court. In the absence of some evidence of some circumstance which might properly have prevented compliance with normal procedures, the jury could not, in my view, do other than entertain a reasonable doubt as to the lawfulness of the appellant's custody at 1.20 pm.

The appeal should be allowed and the conviction quashed. As the appellant's sentence involved a non-parole period for all offences of which he was convicted, the matter must be remitted to the Court of Criminal Appeal for further consideration of that aspect of the sentence.