Regina v Isiura [1963] PGLawRp 295; [1964] PNGLR 84 (22 November 1963)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 84 - Regina v Kakius Isiura

[1964] PNGLR 84

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

KAKIUS-ISIURA

Port Moresby

Minogue J

13-14 November 1963

21-22 November 1963

CRIMINAL LAW - Arrest without warrant in Papua - If unlawful whether in execution of policeman’s duty - Whether interference of third party when arrest not in execution of duty amounts to common assault - Burden of proof for establishing good faith or otherwise of accused - Whether unlawful arrest can be validated by matters for which arrest might have been justified - Whether case to answer - Commonwealth Crimes Act 1914-1960, ss. 3a and 8a - Police Offences Ordinance 1912-1963 of the Territory of Papua, s. 17c^*[lxxiii]1.

A Judge sitting without a jury in a criminal case must determine whether there is a case for the accused to answer on the same principles as a Judge sitting with a jury would determine whether to withdraw the case from the jury. The proper test in each case is: Is there evidence before the Court which ought reasonably to satisfy a jury of the guilt of the accused? The question is one of law.

Ryder v. Wombwell (1868) L.R. Exch. 32 followed.

May v. O’Sullivan[1995] HCA 38; , 92 C.L.R. 654 referred to.

The common law powers of arrest without warrants are applicable in the Territory of Papua so far as they have not been superseded or amplified by Statute or Ordinance. And the common law proceeds on or from the basis that every man is entitled to his liberty and freedom from arrest unless there are clear reasons to show otherwise.

Christie & Anor. v. Leachinsky[1947] UKHL 2; , (1947) A.C. 573 per Viscount Simon at p. 588.

One Maka was arrested by a Sub-Inspector without warrant on a specific charge under s. 8 (b) of the Police Offences Ordinance (Papua) - an arrest not authorised by the section. The accused tried to prevent the arrest and was himself arrested and charged with assaulting a police officer (the Sub-Inspector making the arrest), whilst in the execution of his duty. No inquiry was made of Maka, or of anyone in the vicinity, whether bystanders or the twenty or twenty-five police who were present, as to Maka’s identity, standing or character. It was contended by the Crown that the arrest was justified under s. 8a of the Commonwealth Crimes Act.

Held:

That:

N2>(1)      S. 8a of the Commonwealth Crimes Act applies to the Territory of Papua by virtue of s. 3a of the said Act;

N2>(2)      The word “effective” in s. 8a (b) of the Commonwealth Crimes Act and in s. 17c (1) (d) of the Police Offences Ordinance means “effective to ensure the attendance of the offenders or alleged offender at Court”;

N2>(3)      On the facts there was nothing which ought reasonably to satisfy a jury that the Sub-Inspector arresting Maka had reasonable grounds for believing that proceedings against Maka by summons would not be effective;

N2>(4)      The fact that Maka was a stranger to the Sub-Inspector was not sufficient to provide such reasonable grounds;

N2>(5)      That the Sub-Inspector was not in the execution of his duty at the time of arresting Maka for he was acting outside the scope of his powers;

N2>(6)      That, therefore, the accused was not guilty of assaulting a policeman in the execution of his duty;

N2>(7)      That for the accused to be found guilty of common assault the Crown must establish that the accused was not acting in good faith in coming to the aid of Maka;

N2>(8)      That an arrest which is not lawful cannot be validated by reference to other matters for which the person arrested might have been arrested but was not in fact arrested.

Dumbell v. Roberts, (1944) 1 All E.R. 326 and Christie and Anor. v. Leachinsky (supra) followed.

Semble:

S. 17c of the Police Offences Ordinance does not repeal the powers of arrest contained in other Ordinances or at Common Law but acts in aid of them and exists side by side with s. 8a of the Commonwealth Crimes Act.

Power to arrest without warrant in the Territory of Papua discussed generally.

INDICTMENT

MINOGUE J:  The accused Kakius-Isiura was charged with assaulting John Ernest Nystrom, a police officer while acting in the execution of his duty on the 16th September, 1963.

On that day at approximately 4 p.m. Sub-Inspector Nystrom was called to a disturbance in the vicinity of the Boroko Hotel, four miles from Port Moresby. He was accompanied by Sergeant Raufun and four or five other members of the Royal Papua and New Guinea Constabulary. In the vicinity were an estimated forty or fifty natives, some sitting, some standing and some moving about.

The apparent cause of the disturbance was a woman from Maipa who was in Police custody at the time of the Sub-Inspector’s arrival. The disturbance had subsided and from what the Sub-Inspector was told it appeared that a blood-stained tomahawk had been taken from the woman and that two natives had been taken to hospital.

The woman was placed in a truck which the Court accepted as a secure place of confinement and the Sub-Inspector proceeded to interview people in relation to the disturbance and he gave evidence that between the time of his arrival at shortly before 4 p.m. and 4.30 p.m. the persons in the vicinity were quiet. Sergeant Raufun agreed with this and stated that on their arrival the woman was not handcuffed and that none of the persons in the vicinity was causing any trouble. The woman was actually sitting in front of the Boroko Fire Station which is in close proximity to the hotel and which is used as a Police Station. Sergeant Raufun estimated that in addition to the native police with the Sub-Inspector there were over twenty native police at the Fire Station.

At 4.30 p.m. Sub-Inspector Nystrom noticed a group of natives around the utility in which the woman was sitting and one man, whom he was told later was Maka, was having a heated argument with the woman in a language the Sub-Inspector did not understand. The Sub-Inspector told Maka to leave the area. He feared, he said in evidence, that Maka’s conduct might spark off a further breach of the peace, and further, he thought that the people around were getting too close to the utility. Sergeant Raufun said that when the people were first told to move from the van at 4.30 p.m. some moved and some remained in close proximity.

Maka moved away some distance down the road and five minutes later Sub-Inspector Nystrom was standing on the footpath in front of the Fire Station when he saw Maka walking on the opposite side of the road. Maka stopped, faced the utility, shook his right fist and said in a loud voice: “You meri Maipa you no can go back long place. Bye me killum you straight.” That, Sub-Inspector Nystrom interpreted to mean, “You Maipa woman you won’t go back to your village, I will kill you straight way.”

The Sub-Inspector then walked the thirty feet across the road and spoke to Maka in pidgin-English, a translation of what he said being, “That’s bad language you are using I am arresting you.” He then took hold of Maka’s left arm with his right hand and began to lead him towards the utility. Upon reaching approximately the centre of the road the accused Kakius ran up to him and took hold of his right fore-arm in a firm grip with both his hands and pulled his hand away from Maka and said in a loud voice “You no can kisim” which was translated as “You can’t arrest him.” He pulled with such force that the Sub-Inspector momentarily lost balance but on recovering it arrested the accused as well and conveyed both the accused and Maka to Port Moresby Police Station. Maka was then charged with using threatening words under section 8 (b) of the Police Offences Ordinance of the Territory of Papua, as it then stood, and the accused was charged with assaulting a police officer (the Sub-Inspector himself) whilst in the execution of his duty.

Sergeant Raufun witnessed the scene and described what happened when Maka called out on the roadway. Maka’s using theatening words in a public place was in the Sergeant’s view the only reason for his being arrested.

Sub-Inspector Nystrom said, in answer to Counsel for the Crown, that prior to arresting Maka the considerations which flashed upon him were that Maka had committed the offence of using threatening words. He did not consider it practicable to issue a warrant, and he believed that proceedings by summons would not be effective. Maka was a stranger; he did not know the man and there was no reliable person in the vicinity whom he knew who could vouch for him. He recognised him as a type not native to the Port Moresby area. He did not ask him who he was, where he worked or where he had been employed, and justified his failure to ask on the score that there was no time to make inquiries and he was afraid of a “spark”. He went on to say that in his experience, which I should note was given by him as some five years, with this type of disturbance, one man yelling out in the way that Maka did, is apt to bring fifty about, and liable to end in bloodshed. He believed that he had the right to arrest Maka on the spot without a warrant for the reasons which he gave. In re-examination he went further and said that he thought at the time of the arrest a breach of the peace was imminent. There was a large group of natives gathered. Maka had already been involved in a disturbance five minutes earlier. There were signs that there had been a riot, and he had been told that this was the case, and the people who were gathered there were apparently making no move to leave the area. The Sub-Inspector said that he thought that the words used by Maka and the shaking of his fist were likely to spark off a general breach of the peace. Maka was the first man he observed to wave his arms about, or sing out, and at the time that he first spoke to Maka, the woman in the utility was doing a lot of talking to the people at the rear of the utility.

At the close of the case for the Crown, Mr. Lalor, the Public Solicitor and Counsel for the accused, submitted that on the evidence adduced by the Crown there was no case for the accused to answer, and accordingly he was entitled to be acquitted. His submission rested on two bases: firstly, that Maka’s arrest without warrant was not justified by law, and the Sub-Inspector was not in the execution of his duty whilst making it; secondly, in consequence of this unlawful arrest, the accused was justified by law in acting in aid of Maka with the result that his action in seizing Sub-Inspector Nystrom’s arm did not constitute an assault.

Minogue J.: (His Honour, after setting out the facts in a little more detail than as set out above, continued):

The first matter to be disposed of relates to my position sitting as a Judge without a jury on an application of this nature. This matter is not free from difficulty, and unfortunately the authorities are not entirely clear.

I was referred by Mr. Lalor to the case of May v. O’Sullivan[lxxiv]² which was a case in the High Court on Appeal from the Supreme Court of South Australia dealing with the proper attitude to be adopted in criminal cases when at the close of the case for the prosecution a submission is made that there is no case to answer. In such a case the High Court said, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted but whether on the evidence as it stands he could lawfully be convicted. As the Court pointed out that was really a question of law. Their Honours of the High Court did not, however, go on to discuss the quantum of proof necessary in deciding such a problem. I was referred also to an article by Mr. J. C. Wood in 77 Law Quarterly Review at p. 491 where the learned author discusses, somewhat inconclusively I fear, this very question of the quantum of proof when a submission of no case to answer has been made in a criminal trial.

Dr. Glanville Williams puts it that “the question is whether the prosecution has given reasonable evidence of the matters in respect of which it has the burden of proof.” Willes J. in Ryder v. Wombwell[lxxv]³ states the rule thus” . . . it is now settled that the question for the judge . . . is not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.” Both these statements were made with reference to circumstances in which a judge should withdraw a case from the jury and the latter was indeed uttered in a civil case. Sitting as I am in a trial in which in most common law countries would be with a jury the rule stated by Willes J. seems to me to provide a proper test. I propose to approach the matter in this case in this way: Is there evidence before me which ought reasonably to satisfy a jury of the guilt of the accused.

I turn now to what really is the major issue. Is there such evidence as I have just been discussing that the arrest of Maka without a warrant was lawful? For to succeed on the indictment as laid, the Crown must prove that the Sub-Inspector was actually in the execution of his duty at the relevant time. But before considering what evidence there is, I must first say something on the powers of arrest without warrant.

This is a most difficult field of law and I adopt whole-heartedly what was written by Dr. Glanville Williams in an article in the 1954 Criminal Law Review at page 6, where he says: “The law of arrest has a double importance in criminal law. It is a mode of bringing criminals to justice, and so a step in procedure. And it is a justification for interference with the body of another, which is linked in some respects with the justification of private defence, and with the general powers of the police for preserving order. There is perhaps no part of the law in a more confused and difficult state than this, and none that it is more important should be clear and comprehensible.” He goes on to say: “Neither a police constable nor anyone else has a general power of arrest for crime. A person making an arrest must either act under warrant, or bring himself within the four corners of one of the detailed rules authorising arrest without warrant.” And he describes the effect of such arrest thus:-“If the arrest is now lawful, a different set of legal consequences follows. An unlawful arrest is technically a false imprisonment’, which is both a tort, giving an action for damages against the officer, and a common-law misdemeanour. The damages awarded may be punitive, that is to say more than are necessary to compensate the plaintiff, in recognition of the fact that his constitutional right to freedom has been invaded...If need be, the victim is entitled to a writ of habeas corpus. A police officer acting reasonably has little to fear from these charges: for even if damages are awarded against him, they will, according to the usual practice, be paid from local funds, or, in the case of the Metropolitan Police, from the Metropolitan Police Fund. The way in which the question of the legality of an arrest is more likely to arise in Court is by the police prosecuting the suspect for escaping, or for some kind of assault accomplished in the course of trying to escape. If there is no legal arrest, the charge of escape will fail and so will the charge of assaulting the constable in the execution of his duty.”

In the Territory of Papua, and I say nothing of the Territory of New Guinea, powers to arrest without warrant are scattered over a number of enactments. In the first place many such powers are to be found in the Commonwealth Crimes Act 1914-1961, to which full reference has been made in argument and which by section 3a thereof is made applicable in the Territory.

(His Honour then set out section 8a of the Crimes Act 1914-1960 (Commonwealth).)

And “constable” is defined by section 3 of the Act to mean a Commonwealth Police Officer or a member of the Police Force of a State or Territory. By section 8 the common-law powers of arrest without warrant with respect to breaches of the peace are extended to offences against the Act which involve any breach of the peace. Further powers are found in sections 83b, 84, 89, 89a (2) and 91 and by section 85e, subject to the Act, the laws of a State or Territory with respect to the arrest and custody of offenders or persons charged with offences apply so far as they are applicable to a person who is charged in that State or Territory with offences against the Act.

There are a number of powers of arrest without warrant contained in the Queensland Criminal Code adopted in the Territory of Papua, e.g., sections 260, 455, 546 and, in particular, section 5, which gives a general power of arrest without warrant in all cases of crime.

The Police Offences (Papua) Ordinance 1912-1963 contains a general power similar to but expressed in rather more detail than that contained in section 8A of the Commonwealth Act. This section was much canvassed in argument and I will refer to it hereafter.

In the Vagrancy (Papua) Ordinance 1912-1963, section 8 gives wide and general powers to arrest without warrant for offences against that Ordinance and section 19 of the Motor Traffic Ordinance 1950-1963 contains a number of other such powers. Further research, which I have not had the time to undertake, may well show that a number of other Ordinances also contain such powers.

By section 4 of the Courts and Laws Adopting Ordinance 1889-1951 (Papua), the principles and rules of common law and equity that shall for the time being be in force and prevail in England, shall as far as the same shall be applicable to the circumstances of the Territory be likewise the principles and rules of common law that shall for the time being be in force and prevail in the Territory. This section has a number of difficulties into which it is unnecessary to venture here but in my opinion the common-law powers of arrest without warrant are still applicable in the Territory so far as they have not been superseded or amplified by Statute or Ordinance. And the common law proceeds on or from the basis that every man is entitled to his liberty and freedom from arrest unless there are clear reasons to show otherwise. Viscount Simon in Christie and Anor. v. Leachinsky[lxxvi]⁴ quoted with approval a passage from Dalton’s Country Justice “the liberty of a man is a thing specially favoured by common law.” And to the same effect at p. 591 Lord Simmonds had this to say: “Putting first things first, I would say it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful.”

In this case Maka was arrested without warrant on a specific charge under section 8 (b) of the Police Offences Ordinance-an arrest which is not authorised by that section but which must be justified under some general power. Had there been reason to arrest him and had he been arrested for an offence under section 6 of the Vagrancy Ordinance, no warrant was or would have been necessary.

The contest really resolved itself into a choice between section 17c of the Police Offences Ordinance and section 8a of the Commonwealth Crimes Act, although it is curious to note that if an offence is committed in the Territory against the Commonwealth Crimes Act, by virtue of section 85e of that Act, the laws of the Territory are made applicable-and I take section 17c of the Police Offences Ordinance to be comprised in those laws. This looks like making confusion worse confounded.

Mr. Lalor really argued in the end that he was prepared to allow the Sub-Inspector to justify under either section and to justify under the power which had the least restrictive conditions; that appears to be that contained in section 8a of the Commonwealth Crimes Act.

Mr. Pratt submitted that section 8a of that Act impliedly repealed section 17c of the Police Offences Ordinance. I am inclined to the view that this is not so, but I do not find it necessary to decide this difficult question. I think the two sets of powers can exist side by side, and I am of opinion that the police officer is entitled to seek his justification in whatever power best suits his particular case. I should add that although it is expressed widely enough to cover the whole field of arrest, I am of the clear view, as far as concerns the Territory legislation, that section 17c does not repeal the powers of arrest contained in other Ordinances or even at common law, but acts in aid of them.

I propose to consider whether there can be any justification in section 8a for this arrest. If there can be, then Mr. Lalor’s submission will fail. Sub-Inspector Nystrom is and was clearly a constable within the meaning of that Act (see section 3) and equally clearly there is evidence that he had reasonable grounds to believe that an offence against a law of the Territory had been committed; indeed, he had seen and heard it committed. Is there evidence, then, which ought reasonably to satisfy a jury that he had reasonable ground to believe that proceedings against Maka by summons would not be effective.

Here there was a major clash between Mr. Lalor and Mr. Pratt. Mr. Lalor urged that the proper construction of the word “effective” in this section is “effective to ensure the attendance of the offender at Court”. Mr. Pratt, on the other hand, argued that the word “effective” in the sub-section has a far wider meaning. He conceded that Mr. Lalor’s interpretation was a possible interpretation but went on to urge upon me that “effective” means also “effective to ensure the smooth running of the administration of the law both in proceedings in court and out of court”, and putting it another way, that it means “effective” for the proper administration of justice or “effective from the point of view of preventing the continuance of offences”-that is to say, the constable concerned could believe his action to be the only effective way of dealing with a particular offence; that proceedings by way of summons would not be effective to deal with a particular situation and arrest would be necessary. Section 8a says nothing, unlike section 17c of the Territory Ordinance, about the practicability of obtaining a warrant, and it is to be noted that it is only available where the constable has reasonable grounds to believe that an offence has been committed. Nothing is said, as in section 17c, about an offence in the course of being committed. It seems to me that section 8a is not apt, for example, to deal with the prevention of an offence, and that one must look either to the common law or some other statute to seek power in such a circumstance. If the wide construction sought to be given to the section by Mr. Pratt is the proper construction, then if a constable saw cattle straying upon Commonwealth land in contravention of section 90 of the Commonwealth Crimes Act, and he could not, so he reasonably believe except by arrest, prevent the custodian of those cattle from allowing them to trespass, he would be entitled to arrest that person without warrant. Similarly, were he to observe some person removing a poster relating to a Commonwealth Loan contrary to section 90a, and could not otherwise prevent that removal, that is by warning or asking the person to desist, Mr. Pratt’s construction would allow him to use section 8a to arrest that person. I cannot think that such a result was intended by the legislature in passing this section.

Mr. Lalor’s construction accords, I think, with the general view of the law that a man is entitled to his liberty unless there is the clearest warrant for depriving him of it and I agree with this argument that the section means “effective to ensure the attendance of the offender or alleged offender at court”.

I turn now to a consideration of the evidence in the light of this construction. As I have said, no inquiry was made of Maka, or indeed, of anyone in the vicinity, whether bystanders or the twenty to twenty-five police who were present, as to Maka’s identity, his standing, his character, or otherwise. This has been a curious case, with Maka a shadowy figure hovering in the background. I can form no picture of the man at all. I really think that if the construction which I have placed upon the section be correct, Mr. Pratt was prepared to concede that there was no evidence which could go to a jury. He properly made an attempt to argue that the fact that Sub-Inspector Nystrom, with all his police experience, did not know the man may have been sufficient, but I do not agree with this submission. I cannot see any evidence at all to give ground for belief that a summons would not be effective to procure Maka’s attendance at Court.

Should I be wrong on my view of the law, and in deference to the argument addressed to me, I propose shortly to consider whether, if Mr. Pratt’s view be correct, there was a case to answer in the sense that I have decided that expression to bear. The significant features, to my mind, are the facts that all was quiet for the half hour between 4 p.m. and 4.30 p.m. and even at 4.30 p.m. the only person to disturb that quiet was Maka; that on being told to disperse the people at the back of the truck, including Maka, went away; that the woman was quiet, that there were over twenty police gathered in front of the Fire Station, and no-one other than Maka was causing or showing signs of causing trouble. The police officer neither arrested nor charged Maka for causing a breach of the peace, and this to me seems of some significance; indeed, from Sergeant Raufun’s evidence, I find it difficult to get any picture of there being a crowd or even a few people in a mood of turbulence or of likely turbulence, and I would be prepared, on the evidence as it stands, to hold that even on Mr. Pratt’s construction of the section, there was no need to arrest without a warrant-at least, not until inquiry had been made as to whether Maka was likely to answer to a summons, which even on Mr. Pratt’s construction, must of course be one of the considerations to be taken into account by the police officer.

Before I leave the subject that I have just been discussing, I should add that assuming section 17c of the local Ordinance were the relevant section in this case, I would still be of the same opinion with regard to the interpretation of the word “effective” in subclause (d) of that section.

I turn now to deal with what Mr. Lalor described at his second preliminary point, and that was whether an arrest which is not lawful can be validated by reference to other matters for which the person arrested might have been arrested but was not in fact arrested. On this matter, the law to me is clear, I agree with respect with what was said by Goddard L.J in the Court of Appeal in Dumbell v. Roberts[lxxvii]⁵, “A constable may arrest on reasonable suspicion of felony . . . but if he had no reasonable cause for suspecting that the felony for which he arrested had been committed he could not say ‘I had reasonable cause for suspecting the commission by you of some other felony.’ Still less, in our opinion, can a constable who arrests for a charge of unlawful possession say: ‘I might have arrested you for felony, though I did not.’ “

The reasoning in this case was approved in Christie and Anor. v. Leachinsky[lxxviii]⁶ which in turn, in my view, is clear authority for the proposition that a police officer is not entitled to give a reason for an arrest which is not the true reason. If the true reason for the arrest in this case had been the likelihood of a breach of the peace then Maka should have been so informed. The arrest made as it was for an offence under section 8 (b) of the Police Offences Ordinance cannot later be justified by saying “But I could have arrested you or I really arrested you for an offence under section 6 of the Vagrancy Ordinance.” Indeed, I do not think Mr. Pratt really contended otherwise and I am confident that the reality of this case is that Sub-Inspector Nystrom mistakenly believed that he was authorised to arrest without warrant for an offence under section 8 (b) possibly regarded section 17c as giving him almost unlimited powers. Although Mr. Pratt made a gallant attempt to argue that at the time of the arrest the Sub-Inspector was generally acting in the execution of his duty, I indicated during argument my disagreement with this view and I am still of the opinion that such an argument cannot succeed.

But this does not dispose of the matter because on the charge on which the accused has been indicted an alternative verdict of common assault is open. His action in grasping Sub-Inspector Nystrom is technically an assault unless it can be justified in some way. Mr. Lalor relied upon section 273 of the Code which makes lawful the use by any person of force of any degree for the purpose of defending himself against assault, and makes lawful also the use of a like degree of force by any other person acting in good faith in aid of the person being assaulted for the purpose of defending that person. In the circumstances of this case it would have been lawful for Maka to have used force to resist his arrest.

Mr. Pratt strongly urged upon me that I must be satisfied that the accused was acting in good faith in coming to the aid of Maka and at first I was attracted by Mr. Pratt’s argument. But fuller reflection on the duty of the Court on a submission of this kind has led me to the view that I must approach the matter in the way in which I have described at the outset of my judgment. The burden of proof is on the prosecution to show that the accused was not so acting in good faith, and what I have to consider is whether there is evidence which ought reasonably to satisfy a jury that he was not so acting. The evidence of course is meagre. All that appears is that upon the taking of Maka into custody, the accused, who was standing beside him or in close proximity to him, grasped the Sub-Inspector by the arm saying, “You cannot take him” and attempted to pull him away from Maka. Nothing else was said after the first very brief wrenching away; nothing further was done, and the accused went quietly into custody. Up to this point the accused had not brought himself under the notice of anybody so far as the evidence shows. In my opinion such evidence as this could not reasonably satisfy a jury that he was not acting in good faith, and consequently I am of the view that I should accede to Mr. Lalor’s submission.

In the result he succeeds on both grounds, and the accused is entitled to his discharge, and to a verdict of Not Guilty of the charge upon which he has been indicted because the Crown has not adduced evidence from which, in my view, he could be found guilty.

I should say in conclusion that the matters argued have been of the greatest importance. In the course of argument concern may well have been felt as to the extent of powers of police to properly carry out their tasks and to safeguard the community. I myself was troubled, if Mr. Lalor’s argument was the correct one, how they could go about the simple task of apprehending the drunken man in the street, but the detailed, albeit not complete, examination of the legislation, has served to show that they have a plenitude of powers-sometimes not easy to find and perhaps desirable to be gathered together in compendious form. In the result this is a case where a zealous police officer made an understandable and honest mistake, but the making of such a mistake cannot be allowed to impinge upon the liberty of the subject, a liberty which the law has so long and so jealously guarded.

My formal verdict will be that the accused is Not Guilty.

Verdict: Not Guilty.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Accused: W. A. Lalor, Public Solicitor.

R> R>

[lxxiii]* Section 3A of the Crimes Act 1914-1960 reads:

N1>“3a.      This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories.”

N1>Section 8A of the Crimes Act 1914-1960 reads:

N1>“8a.      Any constable may, without warrant, arrest any person, if the constable has reasonable grounds to believe:

N2>(a)        that the person has committed an offence against a law of the Commonwealth or of a Territory; and

N2>(b)        that proceedings against the person by summons would not be effective.”

N1>Section 17c of the Police Offences Ordinance 1912-1963 of the Territory of Papua reads:

N1>“17c.

N2>(1)        A Constable may, without warrant, arrest a person, if the constable has reasonable grounds to believe, and in fact does believe that:

(a)        that person is committing a crime, misdemeanour or simple offence; or

(b)        that person has committed a crime, misdemeanour or simple offence, and that in either case:

(c)        it would not be practicable to obtain a warrant for the arrest of that person; and

(d)        proceedings against that person by summons would not be effective.

N2>(2)        The provisions of subsection (1) of this section do not apply in the case of a crime, misdemeanour or simple offence in respect of which it is specifically provided by legislation that the person believed to be the offender may not be arrested without warrant...”

[lxxiv]92 C.L.R. 654.

[lxxv](1868) L.R. Exch. 32.

[lxxvi][1947] UKHL 2; (1947) A.C. 573 at p. 588.

[lxxvii](1944) 1 All E.R. p. 326 and at p. 331.

[lxxviii][1947] UKHL 2; (1947) A.C. 573 at p. 588.