2016-12-14 Strano V Yates 2016 ACTSC 363

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BURNS J:

1.On 4 April 2016, the appellant was found guilty by a Magistrate after a contested hearing of one offence of obstructing a public official in the exercise of his function as a public official of the Territory, contrary to s 361(1) of the Criminal Code 2002 (ACT) (the Criminal Code). On 11 April 2016, the Magistrate formally convicted the appellant and imposed a Good Behaviour Order for a period of 12 months. The appellant appealed from the conviction on the following grounds:

(i)The learned Magistrate erred in finding that police had reasonable grounds to believe that fugitive Steven Lockwook was inside the appellant’s apartment.

(ii)The learned Magistrate failed to direct himself about reliance on identification evidence as required by s. 116 of the Evidence Act 2011.

(iii)The learned Magistrate erred in finding that the actions of the appellant amounted to unlawful obstruction of police.

(iv)The learned Magistrate erred in finding that closing the door constituted obstruction.

(v)Alternatively, the appellant relies on claim of right to excuse his actions in obstructing police.

(vi)The learned Magistrate erred in finding that execution of the warrant after the 9 pm curfew was lawful in the circumstances.

(vii)The verdict of the learned Magistrate was unsafe and unsatisfactory.

2.At the hearing of the appeal on 13 October 2016 the appellant abandoned grounds (i) and (ii).

3.The offence of obstructing a public official is created by s 361 of the Criminal Code:

361 Obstructing territory public official

(1) A person commits an offence if—

(a) the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and

(b) the person knows that the public official is a public official; and

(c) the public official is a territory public official; and

(d) the functions are functions as a territory public official.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

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4.The public official said to have been obstructed by the appellant was SeniorConstablePaul Yates, a member of the Australian Federal Police. It was not disputed that when the relevant events occurred on 13 July 2015, SeniorConstableYates was a public official for the purposes of s 361(1) of the Criminal Code or that of the relevant time he was carrying out functions as a territory public official. There was also no dispute that the appellant, at the time of the relevant events knew that Senior Constable Yates was a public official.

5.The prosecution case was that on 13 July 2015 Senior Constable Yates and ConstableArmstrong were looking for Steven Lockwood. They were aware that there was a first instance warrant in existence for the arrest of Mr Lockwood, and they proposed arresting him on the authority of that warrant. They had information that he may be located at Reid and so they went to that address. It was not disputed that the appellant was the lawful occupier at the residence of that address.

6.When police arrived at the appellant’s unit, they spoke to the appellant and asked whether Steven Lockwood was in the unit. The appellant told them he “didn’t know a Steven Lockwood”. Police then left the area.

7.About 10 minutes later Senior Constable Yates and Constable Armstrong returned to the appellant’s unit from a different direction. They said they saw Mr Lockwood standing in the kitchen of the appellant’s unit, before closing the window and pulling the curtains. Senior Constable Yates walked to the front door of the appellant’s unit while Constable Armstrong walked to the rear balcony of the unit where he saw MrLockwood come to the rear balcony. MrLockwood looked at Constable Armstrong, uttered an expletive, and then closed the balcony doors.

8.Senior Constable Yates knocked on the appellant’s front door, and asked the appellant to allow him to enter the unit for the purpose of arresting Mr Lockwood. The front door to the appellant’s unit consisted of a main wooden door, and an outer screen door. When Senior Constable Yates approached the unit on this second occasion the main wooden door was open, but the screen door was closed. Senior Constable Yates directed the appellant to open the screen door, but he did not comply. Senior Constable Yates then told the appellant that there was a first instance warrant in existence for the arrest of MrLockwood and directed the appellant to let him in. The appellant refused entry and asked to see a copy of the warrant. Senior Constable Yates told the appellant that warrants were kept at the watch house and that MrLockwood would be shown a copy of the warrant at the watch house.

9.The exact terms of that conversation between the appellant and SeniorConstableYates are important. Senior Constable Yates was given leave in the proceedings before the Magistrate to refresh his memory on the terms of the conversation from a Statement of Facts prepared shortly after the relevant events. He said that after he told the appellant there was a first instance warrant in existence for the arrest of MrLockwood, the following conversation occurred:

The defendant said, “Show me the warrant.” I said, “It’s a first instance warrant issued in the ACT, mate. We saw him in the window.” The defendant stated, “No, I’m not opening the door. There is no-one in here.” I said to the defendant, “He’ll be shown a copy of the warrant at the watch-house. Now, open the door.” I informed the defendant that he was obstructing police by not allowing access to his unit to apprehend Mr Lockwood.

10.The appellant was again directed to open the screen door, but he did not comply. Instead, he locked the screen door and closed the main wooden door. It was these actions on the part of the appellant that were alleged to constitute obstruction. Police were unable to obtain entry through the screen door as they did not have the required tools with them, although they could be obtained. After some minutes, the appellant opened the door and invited the police inside. By that time, Mr Lockwood was no longer in the unit, and Senior Constable Yates stated that one of the previously closed balcony doors was now open. MrLockwood was not located that night and was not arrested until some 10 days later.

11.The appellant did not give evidence in the proceedings before the Magistrate.

12.Before the Magistrate it was submitted by the appellant that:

(a)that there had been no obstruction as police did not have the right to require the appellant to open the screen door;

(b)the appellant’s act of closing the wooden door could not constitute obstruction because to obtain entry to the unit police needed to force entry through the screen door, and they did not have the tools to do so;

(c)the shutting of the wooden door was a lawful act which, as occupant of the unit, the appellant was entitled to perform; and

(d)any attempt by the police to enter the appellant’s unit utilising the power of entry granted by s 220 of the Crimes Act 1900(Act) (the Crimes Act) was unlawful in the circumstances.

13.The prosecution did, in fact, rely upon the terms of s 220 of the Crimes Act as providing the police with the power to enter the appellant’s unit. The section provides:

220 Power to enter premises to arrest offender

(1) Subject to subsection (3), if—

(a) an officer has, under a warrant, power to arrest the person for an offence; and

(b) the officer believes on reasonable grounds that the person is onany premises;the police officer may enter the premises, using the force that isnecessary and reasonable in the circumstances, at any time of theday or night for the purpose of searching the premises for the personor arresting the person.

(2) Subject to subsection (3), if—

(a) an officer has the power under section 212 to arrest the personwithout warrant for an offence; and

(b) the offence is a relevant offence; and

(c) the police officer believes on reasonable grounds that theperson is on any premises;the police officer may enter the premises, using the force that isnecessary and reasonable in the circumstances, at any time of theday or night for the purpose of searching the premises for the personor arresting the person.

(3) A police officer shall not enter a dwelling house undersubsection (1) or (2) at any time during the period commencing at9 pm on a day and ending at 6 am on the following day unless theexecuting officer believes on reasonable grounds that—

(a) it would not be practicable to arrest the person, either at thedwelling house or elsewhere, at another time; or

(b) it is necessary to do so to prevent the concealment, loss ordestruction of evidence relating to the offence.

(4) In this section:

dwelling house includes a conveyance, and a room in a hotel, motel,boarding house or club, where people ordinarily sleep at night.

relevant offence means—

(a) a serious offence; or

(b) an offence against any of the following:

(i) section 380 (Possession of offensive weapons anddisabling substances);

(ii) section 381 (Possession of offensive weapons anddisabling substances with intent);

(iii) the Criminal Code, section 321 (Minor theft).

14.It was not in dispute that the offence in regard to which the first instance warrant concerning Mr Lockwood had been issued was a relevant offence for the purposes of s220.

15.The Magistrate gave the following ex tempore reasons for finding the appellant guilty:

Yes. Well, in this matter the defendant has pleaded not guilty to the charge that he, in the Territory, on 13 July did obstruct a public official, namely, Paul Yates, in the exercise of his functions as a public official for the Territory, knowing that he was a public official. There is no issue at all that on that day Paul Yates was a public official.

There was some potential issue as to whether he was at the relevant time acting in his exercise of his function as a public official. That would arise if there was question about whether he was lawfully executing the warrant at the time in questions.

Having reviewed the matter over lunch and having received the evidence after lunch it is clear from the facts that the first approach was made at 10 past 9, that at that time there was no attempt to execute a warrant. It was simply an inquiry made as to whether MrLockwood was present at the premises. Police were told that he was not.

It was later that Mr Lockwood was seen. According to the police, the person who they believed to be Mr Lockwood was seen on a balcony and then entering back into the premises, but it was upon seeing that they had returned to the premises. That was of course, at about 9.20, after 9 pm. The exercise of the power in this case was under section 220 of the Crimes Act 1900, which provides that if an officer has under a warrant power to arrest a person for an offence, and there is no issue about that, and the officer believes on reasonable grounds that the person is on any premises, in my view there is abundant evidence and I am satisfied beyond any doubt the police held reasonable grounds for believing that Mr Lockwood was on the premises.

They have given evidence as to why they believed that, and particularly after having seen the male person described by them as Mr Lockwood within the premises, and they gave their reasons for being able to identify him, and it seemed to me that the material on which they relied provided them with reasonable grounds.

The police officer may enter the premises using the force that is necessary and reasonable in the circumstances at any time of the day or night for the purpose of searching the premises for the purpose of arresting the person. Subsection (3) says a police officer shall not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless it would not be practicable to arrest the person either at the dwelling house or elsewhere at another time.

In my view, accepting the evidence of the two police officers having been told that MrLockwood was not on the premises they left. They then saw him in the premises. That gave them, in my view, reason to believe that it would not be practicable to try and arrest him at any other time other than that present time, given the misleading information they had been given, the other information they had about his movements at the relevant times. In my view, it then was not practicable to arrest him at any other time than there and then in light of what had taken pace prior to that. In my view, subsection (3) did not preclude the execution of the warrant at 9.20, as was intended.

Upon returning to the premises the defendant was told of the existence of the warrant and the police wished to enter to execute the warrant. He was directed to open the door. In my view, he had left it at that he may not have been obstructing. In my view, there was no obligation on him to open the door upon a police direction, but instead of leaving things at that the evidence is, and it comes particularly from the second constable who gave evidence, he locked the screen door and he then shut the main door.

Constable Yates’ evidence was the screen door was shut. He was not specific as to whether it was locked or unlocked, but that the front door was then closed in his face. That, in my view, would have made it more difficult for the police to execute the warrant. Even if they had to get the necessary tools to get though the front door, the screen door, they would have still had to break down the main door, or break in through the main door. It being closed would have made their task more difficult, and that would then, in my view, operated as an obstruction.

Of course, the defendant has to obstruct with intention to obstruct. In all the circumstances and the evidence that I have heard it was largely unchallenged. I infer that he well knew that by closing that door he was giving the person inside an opportunity to escape, which appears fairly clear on the evidence that it did occur, and clearly from the whole interaction between him and the police there was an intention, in my view, to obstruct. I find the offence proved.

Grounds of appeal

Ground of appeal (iii): the learned Magistrate erred in finding that the actions of the appellant amounted to unlawful obstruction of police.

Ground of appeal (iv): the learned Magistrate erred in finding that closing the door constituted obstruction.

16.It is convenient to consider these grounds together. The Magistrate, the appellant submitted, made an error of law in finding that the shutting of the wooden door constituted obstruction of Senior Constable Yates after correctly determining that the appellant had no obligation to open the closed screen door when called upon to do so by police. The appellant submitted that he was entitled to bar the door to the police, citing Semayne’s Case (1604) 5 Co Rep 91a; 77 ER 194 (Semayne’s Case), Halliday v Nevill[1984] HCA 80; 155 CLR 1 (Halliday v Nevill) and Plenty v Dillon[1991] HCA 5; 171 CLR 635 (Plenty v Dillon).

17.Semayne’s Case involved an attempt by the plaintiff Semayne to recover goods belonging to a deceased debtor from premises occupied by the defendant, one RichardGresham. The plaintiff sought the assistance of the sheriffs to recover the goods, who proposed to enter the house and recover the goods under authority of a writ obtained by the plaintiff for the recovery of the goods. The defendant objected to the proposed course. The Kings Bench enunciated a number of principles concerning the rights of property owners and the rights of those executing civil and criminal process at common law. The appellant cited Semayne’s Case as authority for the proposition that as the occupier of the unit, which was his dwelling, he was entitled to require the police to force entry, and he was not obliged to give them entry. Thus, the appellant submitted, the closing of the wooden door and locking of the screen door could not constitute an obstruction of the police, as they were acts the appellant was entitled to perform as the occupier of the dwelling.