Sanchez & Anor v Commissioner of Police

The applicants were convicted summarily of wilfully obstructing two police officers during the arrest of another person without warrant. Judge Cash KC dismissed an appeal against conviction and the applicants sought leave to appeal to the Court of Appeal. Leave was refused. Justice Freeburn (with whom McMurdo and Flanagan JJA agreed) held there was no reason to doubt the conclusion that it was lawful for the police officers to arrest the other person without warrant, and therefore, it was open for the magistrate to be satisfied to the requisite standard that the police officers were wilfully obstructed in the execution of the officers’ duties. Of particular note was the analysis of s 365(1) Police Powers and Responsibilities Act 2000 in circumstances where the “reason” for an arrest without warrant is in relation an offence specified in that section (e.g. contravening a direction or requirement of a police officer).

McMurdo and Flanagan JJA and Freeburn J

28 October 2022

Background

LS and RS (together, the “applicants”) live in Buderim with their adult son PS. [3]. PS was served with a notice to appear and a notice to provide his identification particulars. [3]. PS failed to attend a police establishment and provide his identifying particulars, and by failing to do this, committed the offence of contravening a direction or requirement of a police officer contrary to s 791(2) Police Powers and Responsibilities Act 2000 (“PPRA”) (the “charge”). [3]. A police officer had attempted to serve PS with a further notice to appear in relation to the charge, but all attempts at service had failed. [4]. Two police officers entered the dwelling of the applicants and one of the police officers arrested PS in relation to the charge and they did so without warrant under PPRA s 365(1). [5]–[6]. PPRA s 365(1) relevantly provides as follows:

“365 Arrest without warrant

(1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons—

(a) to prevent the continuation or repetition of an offence or the commission of another offence;

…

(i) because the offence is an offence against section 790 or 791.” [12].

The applicants were charged with wilfully obstructing a police officer in relation to the arrest of PS contrary to s 340(1)(b) Criminal Code Act 1899 sch 1 (the “Criminal Code”). [6]. The applicants were both convicted summarily by a magistrate. [7]. The applicants appealed against conviction. [9]. The appeals against conviction were dismissed: see Sanchez v Sanchez v Commissioner of Police [2021] QDC 76. [9]. The applicants applied for leave to appeal to the Court of Appeal. [10]. The application for leave turned on whether there was an error in the conclusion of the primary judge that PS was lawfully arrested under s 365(1) PPRA, and therefore, whether it was open for the magistrate to be satisfied to the requisite standard that the police officers were acting in the execution of their duty, which is an element of the offence of wilfully obstructing a police officer. [10]–[11].

Whether the arrest of PS without warrant was lawful under s 365(1) PPRA

Justice Freeburn (with whom McMurdo and Flanagan JJA agreed) observed it is not a “reason” to arrest without warrant because the police officer suspects a specified offence such as contravening a direction of requirement of a police officer: see PPRA s 365(1)(i). [17]. The words “reasonably necessary” cannot be ignored. [16]–[17]. A police officer may arrest without warrant where “there is a situation of urgency or necessity, or where the arrest is reasonably necessary in circumstances where the offence has a civil disobedience character.” [19]. When assessing “reasonable necessity” a police officer is not required to determine that “an arrest without an arrest warrant is reasonably necessary”, a police officer is only required to determine whether an arrest is reasonably necessary. [20]–[26], [39].

The police officers had attempted to use less coercive means of compelling PS’s cooperation. [33]. When the police officers attended the dwelling of the applicants, LS, RS and PS all declined to answer the door, turned off the lights and reduced their voices to a whisper. [33]. A police officer having seen PS inside the dwelling gave evidence that PS refused to come outside. [33]. Whilst obtaining an arrest warrant was an alternative open to the police officers, PS was being “deliberately uncooperative”. [35]. The police officers formed a view that the arrest in relation to the charge was “reasonably necessary”. [37]. There was no reason to doubt the conclusion of the primary judge that that the arrest was reasonably necessary, and therefore lawful, in these circumstances. [37].

Justice Freeburn (with whom McMurdo and Flanagan JJA agreed) observed that a police officer is not required under s 365(1) PPRA to consider whether effecting entry into a premises to arrest a person is “reasonably necessary”, the general power of a police officer to enter a premises without consent is dealt with elsewhere in the PPRA (i.e. s 21(1) which expressly authorises a police officer to enter a place which includes a “dwelling” to arrest a person without warrant where they reasonably suspect the person to be arrested is inside the dwelling). [28], [42]. PS was inside the dwelling on the evidence of both police officers. [43]. There was no reason to doubt the conclusion of the primary judge that the act of effecting entry into the applicants’ dwelling was lawful in the circumstances. [44].

Disposition

In the result, leave to appeal was refused. [46].

D Kerr