Thomson v C [1989] NTSC 23; 95 FLR 116; 67 NTR 11

that the Section should be read to include the principle: "when, after resistance by the person being arrested, an arrest has been completed, further obstreperous behaviour by that person cannot constitute resisting arrest, but must be punished, if at 2ll, under some other category"? (2) Was I in error by ruling that by reason of the authority of Hallion v Samuels, there can be no charge of resisting police in the execution of their duty where an arrest has been executed against the person alleged to have resisted police? (3) Was I in error by ruling that the defendant had no case to answer with respect to the charge of resisting police in the execution of their duty?" 3. The reference in the stated case to Hallion v Samuels is to the decision of Bray C.J., reported (1978) 17 SASR 558. 4. Section 158 of the Police Administration Act (NT) provides: "A person shall not assault or resist a member in the execution of his duty or aid or incite any other person to assault or resist a member in the course of his duty," 5. Section 6 of the Police Offences Act (SA) relevantly provides:- "(1) Any person who assaults any member of the police force in the execution of his duty shall be guilty of an offence ... (2) Any person who hinders or resists any member of the police force in the execution of his duty shall be guilty of an offence ...". 6. Both sections, without material difference, create offences in respect of a member of the police force, "in the execution of his duty". 7. Neither Section speaks of resisting arrest, or, for that matter, anything else about arrest. Nor does the complaint in the instant case speak of arrest. By contrast, s. 160 of the Police Administration Act (NT) creates offences specifically in respect of persons in custody. 8. I should say immediately that question (1) in the stated case discloses an error. Bray C.J. in Hallion v Samuels supra, did not construe the South Australian provision in the manner suggested. Bray C.J. only decided that on a charge of resisting a police officer in the execution of his duty while arresting a defendant, evidence of conduct subsequent to arrest was irrelevant: see Hallion v Samuels, supra, at pp 561, 563. The decision did not in any way confine the generality of the provision in question but related to the specific charge laid. 9. The fact and time of arrest are irrelevant to the answer to question (2) posed by the stated case. The legality of the arrest was not questioned before the learned stipendiary magistrate and is not now questioned. The only question is whether the resistance was at a time when the police officer was in the execution of his duty. 10. What are the duties of police officers? Courts have sensibly been loath to clothe the ambit of a police officer's duties in specifics. Rather, their duties have always been expressed in the most general of terms. 11. In Rice v Connolly (1966) 2 QB 414 at 419, in a passage endorsed by Cosgrove J. in Innes v Weate [1984] TASRp 3; (1984) 12 A Crim R 45 at 51, Lord Parker C.J. said, "It is also in my judgment clear that it is part of the obligations and duties of a police

constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice." 12. As Cosgrove J. commented in Innes v Weate, supra, the duty of a police officer cannot be stated in other than general terms, as the range of circumstances in which there is a duty to act is so wide, so various, and so difficult to anticipate. I agree. 13. The execution of a police constable's duty is not spent upon arrest, as was argued before me. It was said to be 'in the course' rather than 'in the execution' of the constable's duties to convey the captive from the place of arrest to the police station. I disagree. The execution of a policeman's duty includes conveyance of an arrested person to a police station for formal charging. It has been well said that arrest is not an end in itself. It is but a step in bringing offenders to justice, or, if you please, in the general administration of criminal justice. So too, is conveying arrested persons to police stations. But let Scott L.J. in the somewhat startling case of Leachinsky v Christie [1947] UKHL 2; (1946) KB 124 at 134, speak in my stead: "The ultimate object which the law has in view in authorising arrest, is, of course, the protection of society; but arrest is not an end in itself. What the law grants is not a right, but only a power, although it may also be imposing a duty - especially on a constable. When effected, the arrest is in essence just a step in the administration of criminal justice, and not the less so that it is the first step - or at any rate the first step inter partes - for process may begin by information and warrant, or summons, at a stage before the accused is involuntarily made party to the lis between the prosecutor and him. It is by bringing him in person before the court, whether committing magistrate or judge and jury, that he is made a party; and the whole purpose of arrest, just as much as of the initial steps of information, warrant or summons, is to give the court jurisdiction over the alleged offender, in order that justice may be done, and that he, if found guilty, may be punished. The corporal presence of the offender is just as essential to trial, verdict and judgment, as to punishment; and, if he be innocent, it is equally essential to him, as well as to the prosecution. English justice could not be what it is without that fundamental feature. In short, in our administration of justice the presence of the offender is basically the original starting point of any criminal proceeding;..." And see too, that case on appeal to the House of Lords: [1947] UKHL 2; (1947) AC 573 at 584,600. 14. In the present case, C's conduct (which the learned stipendiary magistrate held to constitute resistance) occurred whilst the defendant was being placed in a police vehicle for conveyance to the police station. At that time, the police constables involved were plainly acting in the execution of their duty. 15. The stated questions should be answered as follows:

Section 6 of the Police Offences Act (1953-1975) (SA) was not so interpreted in Hallion v Samuels.
Yes.
Yes.

At a glance

Court

Decision date

Before

Source

Judgment (4 paragraphs)

Thomson v C [1989] NTSC 23; 95 FLR 116; 67 NTR 11 (9 June 1989)

Parties

Cases Cited (1)