Criminal Law - Jurisdiction, practice and procedure - Warrants, arrest, search, seizure and incidental powers - Entry - Entry by police officer upon private premises - Whether power to enter a dwelling house to take into custody under Road Safety (Alcohol and Drugs) Act 1970 (Tas).

Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1; Garwood v Schultz [1982] Tas R 120, applied.

Criminal Law - Particular offences - Offences against the persons - Other offences against the persons - Assaults - Circumstances of aggravation and aggravated assaults - Generally - Aggravated assault - Intent to prevent lawful apprehension or detainer - Whether necessity to prove lawfulness of apprehension - Whether the accused must have knowledge of the lawfulness.

Judgment Number: [2005] TASSC 117

STATE OF TASMANIA v TERRY LEE and AARON STEVEN MIDSON

1 The two accused are charged on the first count with aggravated assault and on the second count with stealing. They pleaded not guilty to both. The State's case opened and closed yesterday.

2 At the close of the State's case, Mr Richardson submitted for both accused that his clients had no case to answer on the first count with respect to the aggravated aspect of the alleged assault. I reserved my consideration of that question overnight. Mr Richardson accepted that there was sufficient evidence to warrant leaving the first count for the consideration of the jury concerning whether the crime of assault was committed by them, as opposed to an aggravated assault. He submitted with respect to the second count that both accused had no case to answer. I ruled in favour of that submission for reasons I gave at the time. I will substantially repeat them now for the jury's benefit.

3 Whenever an accused person submits, at the conclusion of the State's case, that there is no case to answer, the question for the trial judge is whether, taking the evidence at its strongest in support of the State's case, it would be reasonably open to the jury to find, beyond reasonable doubt, that the crime in question has been proved. In some cases the evidence may simply be insufficient to warrant troubling the jury to consider its verdict and to warrant the trial proceeding any further. In such a case it is appropriate that the judge stop the case then and there.

4 As I said, the first count charges both men with an aggravated assault. The allegation is that as principals, and as accessories by aiding and abetting each other and a third offender, who is not presently before the Court, and with intent to prevent or resist the lawful apprehension or detainer of the accused Terry Lee, they assaulted Constable Knights by grabbing him around the neck, pulling him backwards and punching or pushing him in the chest thereby forcing him to the ground, sitting on his chest and legs, punching his head numerous times, striking his head with a torch, spraying his face with Oleoresin Capsicum and handcuffing his left wrist with his own handcuffs. There is a clear case to answer in that there is ample evidence upon which the jury could conclude that both of the accused are guilty of the crime of assault, which is an alternative to the crime of aggravated assault. For that reason there is no justification for instructing the jury to bring in a verdict of not guilty on the first count and for that reason, the submission of no case to answer on the first count, must fail. Nevertheless it is appropriate that I rule on the submission concerning the aggravated assault charge as my ruling will, in any event, be determinative of any directions I might give to the jury and counsel need to know what those directions will be before they make their closing addresses to the jury.

5 The crime of assault arises under the Criminal Code, s182, and for the purposes of this case it is sufficient to say that it is committed if a person unlawfully and intentionally applies force to another person. The crime of aggravated assault arises under the Criminal Code, s183. Relevantly, it is committed if the accused commits the crime of assault with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person.

6 The State's case against Terry Lee is that he assaulted Constable Knights with intent to resist or prevent his own lawful apprehension or detainer. The case against Aaron Midson is that he assaulted Constable Knights with intent to resist or prevent the lawful apprehension or detainer of Terry Lee. In effect, the primary legal issue raised for my determination is whether the State must prove that they assaulted Constable Knights with the intention of resisting or preventing what they believed to be a lawful apprehension or detainer, or whether the State need only prove that the apprehension or detainer was lawful and that they intended to resist or prevent that apprehension or detainer.

7 It seems to me as a matter of principle, having regard to issues of public policy, that it should only be necessary for the State to prove that the custody in question was lawful, and not that the offenders knew or believed that. In many cases, an offender will have no idea of the laws of arrest and no idea whether, for example, a warrant for arrest, if one is used, is, in fact, a valid one. It makes sense that if a police officer effects what is, in fact, a lawful arrest, then the crime of aggravated assault will be committed if the person lawfully arrested resists that lawful arrest, whether or not that person reflects on whether the arrest is lawful.

8 Counsel referred to no authority on the point. I have determined to apply what is said in Archbold Criminal Pleading Evidence and Practice, 2003 edition, at 1683 - 1684, where a similar statutory provision in the United Kingdom is discussed. There is one difference, which I do not regard as material, in that in the United Kingdom the apprehension or detainer must be for an offence, whereas in this State that is not required. Indeed, Constable Knights did not purport to arrest Terry Lee for an offence. Instead, he purported to exercise his powers under the Road Safety (Alcohol and Drugs) Act 1970 to take Terry Lee into custody for the purpose of transporting him to Launceston to undergo a breath analysis there. In no sense was Terry Lee taken into custody for an offence. Section 183 does not require that the apprehension be for an offence. So that is the only real difference between the two statutory provisions and I do not see that it is material for the purposes of this case.

9 Archbold at 1684 explains that it must be proved that the alleged offender assaulted someone intending to resist or prevent what was or would have been a lawful arrest and that it is clear that it does not have to be proved that the offender was aware of the circumstances that made the arrest lawful. That statement is particularly apposite to the case against Aaron Midson for there is no suggestion that he had knowledge of the precise circumstances in which Constable Knights came to take Terry Lee into custody. It is likely that an authority upon which Archbold relies for its propositions is R v Self (1992) 95 Crim App R 42, a decision of the Court of Criminal Appeal. I intend to apply what is stated in Archbold. Accordingly, I hold that the State must prove that the apprehension or detainer of Terry Lee was lawful but the State does not have to prove that either Terry Lee or Aaron Midson knew that.

10 The next question I consider is whether there is sufficient evidence upon which the jury could find that the apprehension or detainer of Terry Lee was lawful. If so, that issue should be left to the jury for consideration and determination. If not, I should withdraw aggravated assault from the jury's consideration.

11 The only relevant powers that Constable Knights had at that time were contained in the Road Safety (Alcohol and Drugs) Act. His evidence was that the breath test he conducted on the road with Terry Lee revealed a blood alcohol reading of .17 grams of alcohol per 100 millilitres of blood. In addition, his evidence was that he smelled alcohol when he spoke to Terry Lee. In those circumstances, the jury could find that he was justified in believing that alcohol might be present in Terry Lee's blood. By virtue of such a belief and the application of s7A(4), Terry Lee became liable to submit to a breath analysis. As a consequence of that, Constable Knights was entitled to act under s10(1), by requiring Terry Lees to proceed to such place by such means and with such person as the officer indicated and there submit to that analysis. If an officer so directs a person, perhaps to proceed with the officer to the police station where the breath analysing machine is kept, the person is not then in custody. All that has happened is that the person has been directed to proceed with the officer for the purpose of undertaking a breath analysis.

12 There was no evidence from Constable Knights that in express terms, he required Terry Lee to do such a thing, and I suggest that the officer reflect on that and in future make sure that he states quite clearly to such a person that he requires the person to go with him to wherever the breath analysis can be conducted. All Constable Knights said in evidence was that he told Terry Lee that he was going to take him into town for another test. Arguably that is not a requirement. The Act provides for a requirement and not a mere telling. However, I do not say that it would not be open to the jury to conclude that in all the circumstances revealed by the evidence, Terry Lee was so required. I think, as Mr Richardson conceded, there is sufficient evidence to warrant a jury's consideration of that question. What I am doing is merely pointing out that the making of a requirement would be better expressed by informing the person what he or she is required to do, rather than simply telling the person what the officer will do with him or her.

13 The next provision of the Act that is relevant is subs10(2). It is of critical importance to this ruling. It provides that if a person fails or refuses to comply with a requirement of the police officer, or is in such a condition or behaves in such a manner as to give reasonable grounds for believing that the person will not comply with the requirement, the police officer may take him or her into custody and convey him or her to the appropriate place for the breath analysis to be carried out. It is the State's case that Constable Knights took Terry Lee into custody under that provision and it was that custody that Terry Lee and Aaron Midson intended to resist. Therefore, the question has arisen concerning what evidence there is that Terry Lee was taken into custody pursuant to the power in the subsection.

14 There was insufficient evidence to justify a finding that Terry Lee was taken into custody in the first of the two incidents involving Constable Knights. The officer's evidence was to the following effect. He told Terry Lee that he would take him into town for another test and Terry Lee became quite argumentative. He said that he was fairly tired and he didn't want to go with the officer and he mentioned that he wanted to play football the following day. He offered to come to see the officer the following day to fix things up. Understandably, Constable Knight's response was that was not possible. Terry Lee then got out of his vehicle and at about that point he acknowledged that he would accompany the officer. Constable Knights' evidence continued that although Terry Lee acknowledged that he would go with him, he said that he first wanted to check his dogs. The officer agreed to him doing so, saying that they would quickly check the dogs and then they were going. Together, they walked to the rear of the house and Constable Knights said he believed that Terry Lee checked one of his dogs. Having sorted out the dog, according to the officer, Terry Lee said that he wanted to get his jumper from inside the house and the officer's response was that he would not allow him to go into the house and he told him, "Look, we are going back to the car now". Constable Knights said that he put a guiding hand on Terry Lee's shoulder and led him back down the driveway towards the police vehicle. When at the police vehicle, Terry Lee ran away and there was a gap of about half an hour before the two came into contact again.

15 A question that arises is this, is it open to the jury to conclude that Terry Lee had been taken into custody at that point. No suggestion of that was made by Constable Knights and he gave no evidence that Terry Lee had failed or refused to comply, or that he believed that Terry Lee would not comply, with his request that he accompany him to Launceston. His evidence was simply that Terry Lee said he wanted to obtain his jumper and was told he could not do that. I do not see that the jury could conclude that Terry Lee was taken into custody from the mere fact the officer put his hand on Terry Lee's shoulder and from what the officer said.

16 The evidence of Constable Knights concerning the second incident was as follows. He parked the police vehicle outside the house and knocked on the front door. He could hear males talking inside but there was no response to his knocking. He then walked to the rear of the house and saw, apparently through a window, the silhouette of a person in the back porch. He could not tell the sex of the person. The person was standing but appeared to crouch down as the officer approached. The evidence was that the back porch was an enclosed part of the house, surrounded by walls on all sides with a door leading into it from the outside. It seems that there was also a door from the porch into the rest of the house. Constable Knights said that when he reached the back of the house, the outside door into the porch was fully open and he could see Terry Lee crouched inside, possibly behind the door. Constable Knights stepped a couple of paces inside the porch, took hold of Terry Lee by the scruff of the neck, told him that he was in custody and took him outside and down the drive on the way to the police vehicle. In the course of doing so, the officer was violently attacked by the two accused men and a third person.

17 The submission of Mr Richardson for the accused men was that Terry Lee was unlawfully taken into custody because the officer had no power to enter his home to effect an arrest or to take him into custody. That raises a discrete legal point for consideration.

18 I determine the point upon the basis of two cases in particular, Garwood v Schultz [1982] Tas R 120 and Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1. In the former case, Cox J considered circumstances where a police officer pursued into a house a person he required to undertake a breath analysis. The officer was expressly ordered by the father of that person to get out, but the officer disregarded that and continued with his attempt to take the son into custody. The father obstructed the officer. It was held that no offence was committed by the father because the police officer had no power to enter the house to effect an arrest or to take the son into custody. A slight difference between the circumstances of that case and those of this case is that in that case the occupier of the house expressly told the police officer that he was not to enter, making the officer a trespasser when he refused to comply, whereas here Constable Knights was not ordered out. That raises the question whether Constable Knights had authority to enter to take Terry Lee into custody unless he was expressly required not to enter.

19 In Halliday v Nevill, the majority of the High Court held, and I read from the head note:

"If the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway for any legitimate purpose that in itself involves no interference with the occupier's possession or injury to the occupier, his guests or his or their property."

20 It was held that there was an implied licence on the part of the police officer to go onto the driveway or path leading up to the door of the house, and it is implicit from that that there was no power to enter the house itself. To do so without invitation would amount to a trespass.

21 Therefore, in the circumstances of this case, I hold that Constable Knights had no power to enter into the porch of the house to take Terry Lee into custody. Accordingly, I would direct the jury that as a matter of law, the apprehension of Terry Lee in his porch could not have been lawful. Consequently, the jury could not find that Terry Lee or Aaron Midson intended to resist or prevent a lawful apprehension or detainer of Terry Lee and they could not be found guilty of aggravated assault.

22 As to the second count of stealing, I ruled yesterday, in the absence of the jury, that there was no case for either of the accused men to answer and I will repeat much of my reasoning for the jury to hear. The evidence was that the officer's torch, radio and capsicum spray can were missing after the incident. The crime of stealing is committed if a person dishonestly takes another person's property with the intention of permanently depriving that person of it. Either of the accused men could be found guilty of stealing if he actually took one or other of the items with the intention of permanently depriving the officer of them. What evidence is there of that? Concerning Terry Lee, in his interview with the police, he indicated that he was standing back at the time the spray can was discharged, so by inference, on his version of the events, he was not the one who discharged it. There is no evidence that he took hold of any of the items at all, or that he removed any of them from the scene. Concerning Aaron Midson, he said to the police that he picked up the torch, struck the officer with it and put it down again. He also said that his face was very close to the officer's face when the spray can was discharged and he received quite a lot of the spray himself, to the extent that he could not see and had to go inside to wash out his eyes. There is no evidence suggesting that he removed any of the items from the scene. There was also evidence from Mr Berryman that when he arrived on the scene a large man with curly hair and carrying a long torch, came up to him. That evidence suggests that a person, who was not either of the accused men, had hold of the torch at that point in time.

23 On the evidence, the property may have been taken by some other person, either the third member of their group or someone unconnected with them. There is simply no evidence as to where and how they were taken and insufficient evidence upon which a jury could find beyond reasonable doubt that these two men were responsible for stealing them. I add that there was no evidence upon the basis of which the jury could conclude that either of them aided or abetted the actual thief to steal the property. It is a mystery concerning who took the property.