Follett v Mann

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: McWilliam AsJ
• Judgment Date: 04 June 2019
• Docket Number: File Number: SCA 45 of 2018
• Date: 04 June 2019

Jennifer Helen Follett

(Appellant)

and

Matthew John Mann

(Respondent)

[2019] ACTSC 141

Before:

McWilliam AsJ

File Number: SCA 45 of 2018

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW — APPEAL — Appeal against conviction — common assault — where arrest found to be unlawful under s 121 of the Casino Control Act 2006 (ACT) — where alternative source of power under s 218 of the Crimes Act 1900 (ACT) existed to arrest by way of “citizen's arrest” — whether power to arrest impliedly requires element of necessity — whether appellant acted in self-defence — whether findings of guilt otherwise unsafe or unsatisfactory

Cases Cited:

Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701

Coleman v Power [2005] HCA 39; 220 CLR 1

Dal Cortivo v The Queen (2010) 204 A Crim R 55

Donaldson v Broomby (1982) 40 ALR 525

DPP v Carr [2002] NSWSC 194; 127 A Crim R 151

DPP v Matthews-Hunter [2014] NSWSC 843

Greenwood v Barlee [2018] ACTCA 62

Holloway v Thurgar [2016] ACTSC 32

JCS v R; R v JMS [2006] NSWCCA 221; 164 A Crim R 1

Kruger v The Commonwealth of Australia (1997) 190 CLR 1

M v The Queen (1994) 181 CLR 487

Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190

Peverill v Crampton [2010] ACTSC 79

R v Hill [2012] ACTSC 17; 6 ACTLR 167

R v Portelli [2004] VSCA 178; 10 VR 259

Ruddock v Taylor [2005] HCA 48; 222 CLR 612

Thomas v R (1992) 65 A Crim R 269

Uber BV & Anor v Howarth [2017] NSWSC 54

Veivers v Roberts, Ex parte Veivers [1980] Qd R 226

Zavarinos v State of NSW [2004] NSWCA 320; 62 NSWLR 58

Zecevic v Director of Public Prosecutions (1987) 162 CLR 645

Legislation Cited:

Casino Control Act 2006 (ACT) s 121

Crimes Act 1900 (ACT) ss 24, 26, 49, 212, 218

Crimes Act 1900 (NSW) s 352

Crimes (Sentencing) Act 2005 (ACT) s 17

Criminal Code 2002 (ACT) s 33(1)

Evidence Act 2011 (ACT) s 138

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100

Legislation Act 2001 (ACT) s 139

Magistrates Court Act 1930 (ACT) s 208

Representation:

Counsel

M Keaney (Appellant)

S Naidu (Respondent)

Decision:

See [70]

McWilliam AsJ

1 On 29 July 2016, Jennifer Follett, the appellant on this appeal, was involved in an incident at the Canberra Casino ( Casino) after she sought to intervene between security officers employed by the Casino and her twin sister, Samantha Follett, whom they were purporting to arrest.

2 The appellant was arrested (along with her sister) and subsequently charged with three offences:

• (a) Common assault, contrary to section 26 of the Crimes Act 1900 (ACT) ( the Crimes Act), in that she punched a Casino officer, namely Mr Anthony Orlandi (CC 16/9645).

• (b) A second offence of common assault, which occurred after she had been detained in the security office of the Casino. The appellant was alleged to have struck a different Casino officer, namely Mr Joshua Cole, in the face with her cardigan (CC 16/9646).

• (c) Assault occasioning actual bodily harm, contrary to section 24 of the Crimes Act, in that she bit a third Casino officer, namely Mr Benjamin Feain, twice, first on the elbow and then on the forearm (CC 16/9647).

3 In relation to the third charge listed above, an alternative lesser charge of common assault was available, pursuant to s 49 of the Crimes Act.

4 On 18 July 2018, Magistrate Morrison found the appellant not guilty of the first offence of common assault in respect of the punch. His Honour found the appellant guilty of the second offence of common assault relating to the cardigan. In respect of the third offence, his Honour found the appellant guilty only of the alternative offence of common assault, and only in relation to the first bite.

5 The appellant was sentenced pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT) for the two proven offences of common assault, and received a non-conviction order, a condition of which was that she enter into a Good Behaviour Order for a period of 12-months, and pay the associated court costs within one month.

6 By this appeal, the appellant seeks to overturn the findings of guilt made by the court below on four grounds. The appellant argues (in summary) that:

• (a) She was not lawfully detained ( Ground 1);

• (b) There was a reasonable possibility that she was acting in self-defence or defence of another person (being her sister) ( Ground 2);

• (c) Certain evidence obtained pursuant to the unlawful arrest should have been excluded ( Ground 3); and

• (d) In all of the circumstances, each of the findings of guilty was unsafe and unsatisfactory ( Ground 4).

Principles applicable on appeal

7 The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The applicable principles were set out in Peverill v Crampton [2010] ACTSC 79 by Refshauge J at [24], as follows:

Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seems to be as follows:

• 1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising discretion on a wrong principle or in a way that is clearly wrong.

• 2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.

• 3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.

• 4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.

• 5. The appellate court is not restricted to making decisions which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.

• 6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.

• 7. The appellate court should not determine the correct judgment for itself and only order a retrial if it cannot.

8 These principles have been cited in a number of authorities since, including Greenwood v Barlee [2018] ACTCA 62 at [7] and Holloway v Thurgar [2016] ACTSC 32 at [4].

Evidence and submissions on appeal

9 The entirety of the evidence in the Court below is before this Court on appeal. This includes the transcripts of the hearing which took place over five days, and the CCTV footage of the incidents that occurred on the night of 29 July 2016.

10 During the hearing, an issue arose as to the proper construction of s 218 of the Crimes Act and whether it impliedly imports a test of necessity. I allowed supplementary submissions on that question following the hearing, as well as submissions addressing what appears to have been a finding of a collective state of mind on the part of the Casino officers by the magistrate, and submissions addressing an alternative argument of self-defence.

Ground 1 — Was the appellant lawfully detained?

11 The issue is whether the magistrate erred in finding that the appellant was lawfully detained. If the appellant was not lawfully detained, this may have had consequences for whether evidence led in the court below should have been excluded, and for any findings as to whether the appellant was acting in self-defence when responding to her unlawful arrest.

12 The magistrate delivered written reasons on 18 July 2018 ( Reasons). Relevant to this appeal, his Honour was satisfied the evidence established (to the criminal standard) the following facts:

• (a) The appellant did punch Casino officer Orlandi, but was acting in self-defence (including the defence of her sister).

• (b) The appellant was then arrested in the smoking area of the Casino after she struck Casino officer Orlandi in the presence of casino officer Cole.

• (c) The appellant struck Casino officer Cole in the face with her cardigan.

• (d) The appellant bit Casino officer Feain twice.

13 In the court below, there was an argument about whether a Casino officer had power to arrest either the appellant or her sister under the Casino Control Act 2006 (ACT) ( Casino Control Act). The power is set out in s 121, relevantly as follows:

121 Detention of suspected person

• (1) This section applies if a casino official suspects, on reasonable grounds, that a person (the suspected person) in the casino is committing, or has committed, an offence.

• (2) The official must detain the suspected person in a suitable place in the casino until a police officer arrives.

• (3) …

(Emphasis added.)

14 The magistrate considered whether the smoking area was part of ‘the casino’. His Honour found that diagrams contained in the regulations to the Casino Control Act designated what comprised ‘the casino’ and they did not include the smoking area. Therefore, the words of s 121 above did not give any casino officer power to arrest a person in the smoking area. That finding is not challenged on appeal.

15 Whether the appellant was lawfully detained thus turned on whether another source of power existed. The magistrate considered s 218 of the Crimes Act as this alternative head of power, which is set out in the following terms:

218 Power of arrest without warrant by other persons

• (1) A person who is not a police officer may, without warrant, arrest another person if he or she believes on reasonable...