CITATION: White v Tunks [2003] TASSC 109

Criminal Law - Jurisdiction, practice and procedure - Warrants, arrest, search, seizure and incidental powers - Arrest and detention - Powers of arrest - Statutory powers - Police Offences Act 1935, s55 - Arrest by citizen of 9 year old girl alleged to have committed assault - Child under 10 not capable of committing offence by statute - Arrest not justified - Whether child "found offending" - Arrest of child unjustified and an assault itself.

Police Offences Act 1935 (Tas), s55(3) and (5).

R v Ackerley [1963] Tas SR 186 (NC), 46/1963; Hibble v Phegan 50/1997; Turner v Maher B10/1990, referred to.

Judgment Number: [2003] TASSC 109

1 In a Magistrates Court the respondent was charged with common assault, contrary to the Police Offences Act 1935 ("the Act"), s35(1), in that on 11 September 2002, he grabbed the complainant's clothing at the back of her jumper and forced her to accompany him to the George Town Police Station. He pleaded not guilty. Following a hearing, the magistrate dismissed the charge. The applicant moved this Court to review the dismissal.

2 The respondent was 37 years old. The complainant was a 9 year old girl. There was no dispute that he assaulted her by applying force to her and depriving her of her liberty. At issue was whether his actions were proved beyond reasonable doubt to have been unlawful, that is to say, without lawful justification. It was explained on his behalf to this Court, that he reasonably believed that the complainant had assaulted his 5 year old son and caused substantial injury, as a consequence of which he did all that was reasonably necessary to apprehend the complainant and take her immediately to the police to be dealt with by them. His case was not articulated in that way to the learned magistrate. He conducted his own defence at that time.

3 The complainant's evidence was as follows. She and her friend were walking along a street in George Town when they came across a little boy looking for his dog. She was playing right on the edge of the gutter and the boy was walking next to her on the road, when she fell over on top of the boy, causing him to fall over as well. She said "then he got up and we said sorry, then he just went home". Following that, she went home. On receiving her mother's permission to go down the street, she went out again with her friend. They were looking in some shops in the main street. When coming out of a shop, she saw the respondent close to her, running towards her. Although unsure, she thought that he yelled out something. She and her friend attempted to run away, but the respondent caught her. He took hold of the hood on the back of her jumper, preventing her from running away. Still gripping her clothing, he forced her to walk across the road with him to the police station on the other side. If she had not walked with him, she would probably have fallen over, because she could not get away from his grip. At the police station, police officers took charge of the situation and arranged for a relative to pick her up.

4 Evidence was also given by Sergeant Shea. He was in the police station when he heard a disturbance in the public enquiry area. He observed the respondent "to be aggressive, he was boisterous and he was shouting at the civilian staff member behind the counter". At that point in time the complainant, who was visibly upset and crying, was no longer in the respondent's grip. The respondent's breath smelt strongly of intoxicating liquor and he was affected by alcohol, but was not drunk.

5 An exhibit was a video recording of a twenty-three minute interview conducted by police officers with the respondent almost a month later, on 8 October. In it he said that the incident occurred two weeks before his son's sixth birthday. As to the age of the complainant, he said "I think she is about 9 years old". He said that his son was playing at the front of his home with his dog and another child, who was about 4½ years old. He heard his son screaming and saw him come into the house with two of his bottom teeth missing and grazes and blood on his elbow and knee. His son said that he had been bashed up by a girl up the road. He indicated that there were two girls present. The respondent said that he looked outside but there was no sign of the girls.

6 The respondent estimated to the police that his son had returned home in an injured condition about 1 or 1½ hours before the later incident involving him and the complainant. He made a decision to go fishing with a friend and went to a fishing shop for some bait. When he and his son were sitting in his car, along with the child with whom his son had been playing earlier, two girls walked past. He described what happened then:

"... and Stephen said straight out 'that is them girls that bashed me Dad' and cause there was another young kid there with us and he said 'yeah Tunksey that is them' ...".

He said that as soon as the girls spotted his son in the car pointing at them, they took off like bullets. He said that he thought that his son had not been lying because of the reaction of the girls to seeing his son. He got out of his car and ran after the girls. He "... caught one young girl by the collar just around the corner ... [and] I said I will take you over to the Police station." I note that the respondent did not assert to the police that the girl he caught, who must have been the complainant, had been identified by his son as the one who bashed him. All he said was that his son identified the two girls as "them girls that bashed me" and the other child confirmed "that is them". He explained that the reason he grabbed hold of the complainant in particular, was that she was the slower one, the first one he reached. He agreed that when he got out of his car, he probably pointed at the girls and said "you". However, he maintained that the girls had commenced to run away before he got out of the car, upon spotting his son.

7 The respondent said at the interview that he walked with the girl to the police station about 50 yards away and across the street, keeping hold of her collar as they proceeded. She was crying. He agreed that she had no choice but to go with him, but denied pushing or dragging her. He agreed that when they got to the police station, he was "a little bit irate". He accepted that on arrival he did not tell police officers what he was about and why. He said only "do something to the bloody kid or something". He did not then explain his belief about what the girl had done and his reason for taking her to the police station. When the interviewing officer complained that "we didn't even know your half of the story", he responded "as I said I was irate I just wanted that kid off the street". On being asked what he thought would happen to the girl once he got her to the police station, he said he thought she would probably be taken home for her parents to deal with her. He added, "that is what I wanted".

8 The respondent neither gave nor adduced evidence. No submissions were addressed to the learned magistrate by the prosecutor or the respondent, nor did the learned magistrate seek any.

9 In the reasons of the learned magistrate for dismissing the complaint, it was found that what the respondent had done was purport to arrest the complainant for an offence, using no more force than was reasonably necessary for that purpose, which included taking her to the police station. His Worship then considered the powers of a person, other than a police officer, to make an arrest under the Police Offences Act, s55, the relevant provisions of which are:

"(3) Any person may arrest, without warrant, any person found offending against any provision of this Act if such offence involves -

(a) substantial injury to the person of another;

(4) For the purposes of this section, an offence shall be deemed to involve any of the matters specified in subsection (3) if the person arresting has reasonable grounds for believing that such matter has been, or will be, the consequence of any act of the offender in committing such offence.

(5) For the purposes of this section, a person is said to be 'found offending' if he does any act, or makes any omission, or conducts or behaves himself, and thereby causes a person who finds him reasonable grounds for believing that he has, in respect of such act, omission, or conduct, committed an offence against this Act."

"... section 55(3) of the Police Offences Act provides for any person to effect an arrest without a warrant of any person found offending against any provision of this Act if such an offence involves (a) a substantial injury to the person of another. It seems to be common ground or at least it is not seriously disputed by the police and the defendant repeatedly asserts that in the interview that his 6 year old child suffered quite significant injury, it is alleged, at the hands of the complainant. That limb of section 55(3)(a) is satisfied. The question is was the complainant a person found offending.

That phrase for immediately current purposes is set out in section 55(5) of the Act ...

Conduct does not occur in a vacuum. The context in which this conduct occurred was that it is claimed by the defendant that his 6 [sic] year old son had complained to him of injury effected at the hands of the complainant. With his son he then observed the complainant, who seeing the defendant, immediately an [sic] off. That was conduct which was capable of grounding to my mind a reasonable belief given the history that the defendant believed, that the complainant was guilty of an offence under the Act and had been found offending within the meaning of section 55(3). What he did was to take hold of her using no more force than was reasonably necessary and took her to the police station so that due processes, whatever they were to be, could be conducted. That's what happened on this day. The defendant had arrested the complainant and delivered her in to the hands of the police and he was then charged with assault. The complaint is dismissed."

11 For the purposes of the motion to review, the applicant's counsel conceded that the respondent's son suffered substantial injury as required by s55(3)(a). Only one ground of review was relied upon by the applicant. It was:

"The learned magistrate erred in fact and/or in law in finding that in taking hold of [the complainant] and requiring her to accompany him to the Georgetown police station, the respondent arrested, or attempted to arrest her for an offence (of common assault) pursuant to Section 55(3) of the Police Offences Act 1935, in that [the complainant] being under 10 years of age, was incapable of committing an offence, by virtue of Section 18(1) of the Criminal Code."

12 The Criminal Code, s18(1), provides that "no act or omission done or made by a person under 10 years of age is an offence". A consequence of that is that the complainant could not have committed the offence of assault against the respondent's son. She was only 9 years of age. In light of the respondent's statement to the police that he thought that she was about 9 years old and in the absence of evidence that he believed that she had committed an offence against his son, it was not open to the learned magistrate to find that the respondent may have reasonably believed that the complainant had committed an offence against the Act. Counsel for the respondent did not maintain a submission to the contrary. Accordingly, the learned magistrate was clearly in error when he determined that what the respondent had done was [lawfully] arrest the complainant. Therefore, the motion succeeds and the dismissal of the complaint will be set aside.

13 The parties were agreed that instead of remitting the matter for rehearing, I should make whatever orders I consider appropriate to finalise the proceedings on the complaint. On that basis, I find the complaint proved. As I said earlier, the respondent admitted assaulting the complainant in the manner alleged. The only conclusion reasonably open to a judicial officer, properly instructing himself as to the law, was that it had been proved beyond reasonable doubt that the assault was unlawful.

14 Before determining the appropriate sentencing order, I comment that I think it likely that the learned magistrate erred for reasons other than the one raised by the applicant's notice to review. Without the benefit of submissions, I will list them upon the basis that they seem to be strongly arguable:

1 There was no evidence to suggest that the respondent may have believed, reasonably or not, that the complainant was the girl who had applied force to his son. He told the police that his son told him he had been bashed by one girl, but there were two girls present. Both girls ran away and the respondent chased them both. According to what he said to the police, his son and the other boy identified the two girls as "them", and the only other reason he had for taking hold of the complainant, rather than the other girl, was that the complainant was the slower runner. Presumably he would have taken hold of the other girl instead if she had been the slower one. On the basis of the evidence, he had no idea which of the two girls may have committed an offence by applying force to his son.

2 Even if it be assumed that the complainant was 10 years of age, the respondent did not find her offending. He saw nothing of the alleged offence. One to 1½ hours later, he took hold of the complainant following identification of her and her friend as "them" by his son and the other boy, at a point in time when the girls were running away from him. The only relevant act of the girl that he found her committing, was the act of running. That could not have formed the basis of a belief that in respect of that act, she was or had committed an offence against the Act. See s55(3) and (5). The complainant could not be said to have been "found offending" by the respondent in circumstances where her alleged offence was committed 1 to 1½ hours earlier at a different place. R v Ackerley [1963] Tas SR 186 (NC), 46/1963 at 2; Turner v Maher B10/1990 at 4 - 6; Hibble v Phegan 50/1997 at 11.

3 In the absence of evidence that the respondent was intending to effect a lawful arrest, there was no evidence that he effected it. The only evidence of his purpose came from him, when he told the police that he intended to take the complainant to the police station with the expectation that the police would probably take her to her parents for them to deal with her. Further, he said that he "just wanted that kid off the street".

15 I turn to the question of sentence. At the age of 38 years, the respondent has a substantial record for relatively minor offences. It reveals that he has regularly over-indulged in alcohol and has committed many offences as a result. For example, his record includes convictions for driving with alcohol in his body, exceeding .05 (7), drunk and disorderly (2), disorderly conduct (2), abusive language, resisting a police officer, having liquor in a public place (2), consuming liquor in a public place, carrying an open container of liquor in a central area and carrying a gun while under the influence of alcohol. He has been sentenced to a number of terms of imprisonment for drinking and driving offences and for driving while disqualified. The present offence was committed when he was affected by alcohol.

16 Particularly relevant is his record for assaults. In 1983 he was fined $25 for an assault. In 1993 he was sentenced to six weeks' imprisonment, all of which was suspended, for an assault. On 25 April 2000, he was sentenced for three assaults. The first of them was committed on 18 February 1999, for which he was sentenced to four weeks' imprisonment, all of which was suspended on condition that for three years he be of good behaviour and commit no offence of violence. On 12 August 1999 he committed two assaults, for which he was sentenced to eight weeks' imprisonment, cumulative to the other sentence, all of which was suspended on a condition of good behaviour for three years. It is arguable that he breached the conditions of suspension when he committed the present offence. That is relevant because it demonstrates that the 2000 sentences for assault did not act as deterrents on this occasion.

17 I acknowledge the force of the submission of counsel for the applicant that the taking hold of a child on a public street by an adult who is a stranger, is a serious matter and it must be discouraged. Nevertheless, there are mitigating factors. The respondent acted impulsively when his son identified the girls. He believed that he was doing the right thing at the time and that his son had suffered a substantial injury at the hands of the complainant or her companion. He took hold of her no more than 50 metres from a manned police station and with the intention of taking her across the street to the station, to be dealt with by the police. He used no more than reasonable force to achieve his purpose. He was not seeking to administer punishment to the girl himself. From what he told the police, he apologised to the complainant's mother for what he had done. He accepted that it was wrong.

18 In all the circumstances, this is a case in which it is appropriate to sentence with relative leniency, although having regard to his record, I think a short sentence of imprisonment, all of which will be suspended, is demanded. He must learn to desist from using force against others. It would be an unusual case to suspend imprisonment for an offence committed not long after the imposition of other suspended sentences of imprisonment for the same type of offence, but this is an unusual case.

19 He is convicted and sentenced to imprisonment for four weeks. All of that is suspended on a condition of good behaviour for two years. He is liable to pay a victims of crime compensation levy of $50 and it is directed that it be paid within two months of his release from prison from a sentence that he is currently serving.