Running from the police ain’t a crime when you ain’t arrested

Only recently my colleague discussed the case of a man who fled from police who wanted to speak with him about dinner.

He was charged with resisting the police in their execution of their duty — making life difficult by not hanging around to be investigated. The Magistrates’ Court dismissed the charge in Hemingway v Hamilton [2011] VMC 10.

The DPP appealed the decision, and last Friday the Supreme Court upheld the Magistrates’ Court decision, in DPP v Hamilton [2011] VSC 598.

Despite some of the media reporting at the time, the case is not a green light for people to run from the police. Kaye J was very careful to identify the narrow scope of the judgment.

[3] At the outset, it is important to note what this appeal is, and is not, about. In particular, this is not a case in which, at any material time, the police either had arrested the respondent, or were in the course of arresting him. Nor, on the facts of this case, was there evidence that the respondent was fleeing from the police, having been informed that the police intended, or were attempting, to arrest him. Further, it was accepted, on appeal, that this is not a case in which the respondent, as a suspect, had refused to provide his name and address in response to a request by a member of the police force, pursuant to s 456AA of the Crimes Act 1958. Rather, on this appeal, the issue which must be determined is whether, on the particular facts of this case as set out in the evidence which was led before the Magistrate, the police had the power to require the respondent, as a suspect, to stop and speak to them, notwithstanding that the police were not then in the course of arresting him. The resolution of that issue is critical to the question whether, at the relevant time, the police were acting “in the execution” of their duties for the purposes of s 52(1) of the [Summary Offences] Act.

After reading the facts, it’s probably no great surprise to hear the outcome, and there’s not a huge amount of new law in the judgment. But it does remove any doubt about the purpose of Crimes Act 1958 Part III, Division 1, Subdivision 30A — the part often referred to in short-hand as “464“.

The DPP argued that because Andrew Hamilton was in custody as defined in s 464(1)(c), he was obliged to remain with the police when they wanted to speak with him.

The provision provides:

(1) For the purposes of this subdivision (that is, subdivision 30A) a person is in custody if he or she is —

(c) in the company of an investigating official and is—

(i) being questioned; or

(ii) to be questioned; or

(iii) otherwise being investigated—

to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.

But Kaye J confirmed the conventional understanding of that provision: its purpose is to provide the same rights and protections to suspects who aren’t actually under arrest as for those who are arrested.

[37] Rather, in my view, the correct construction of the provisions of Division 30A is that contended for by Mr Carter. It is clear that the intention of the subdivision was to ensure that suspects, who are undergoing questioning by a police officer, have the same rights and protections as those which are provided, by the subdivision, to suspects who are under lawful arrest. Subdivision 30A constitutes a scheme or code, stipulating a number of basic protections, which are to be assured to a suspect, who is being questioned, whether that suspect is under arrest or not. In particular, subdivision 30A provides, in respect of any suspect who is undergoing questioning by police (whether under arrest or not): that that person be informed of his or her right to remain silent (s 464A(3)); that that person be informed, before questioning, that he or she may communicate with a friend, relative and legal practitioner (s 464C); that such person (where necessary) have an interpreter (s 464D); that if such a person is under the age of 18 years, the questioning not be carried out unless a parent or guardian, or other independent person, is available, and the suspect has been permitted to communicate with that person (s 464E); that, if the person in custody is not a citizen or permanent resident, that person be informed that he or she may communicate or attempt to communicate with the consular office of the country of which the person is a citizen (s 464F); that a recording be made of the giving to the person of the information required by the provisions to which I have just referred (s 464G); and that, where practicable, any confession or admission made by such person be recorded (s 464H). None of those provisions give rise to an implication, let alone a necessary implication, that the police have a right to detain a person, in custody, for questioning, without arresting that person. Rather, it is clear, from the structure of subdivision 30A, that that set of provisions is designed to extend the basic protections, stipulated by subdivision 30A, to persons who are being questioned, notwithstanding that they are not under arrest.

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