R v o’Neill  NSWCCA 193 (21 May 2001)
Last Updated: 25 May 2001
NEW SOUTH WALES CRIMINAL COURT OF APPEAL
CITATION: REGINA v O’NEILL  NSWCCA 193
HEARING DATE(S): 3 May 2001
JUDGMENT DATE: 21/05/2001
REGINA v Leslie William O’NEILL
JUDGMENT OF: Mason P Sully J Dowd J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 00/71/0047
LOWER COURT JUDICIAL OFFICER: Mahoney DCJ
Crown: P G Berman SC
Respondent: P Strickland
Crown: S E O’Connor
Respondent: Cater & Blumer
Arrest – s33B Crimes Act 1900 – resisting arrest – lawful arrest – police – forcible entry into private home – “proper announcement” – lawful reason for entry without permission – whether circumstances amounted to implicit expression of intent to arrest – Crown appeal under s5F(2) Criminal Appeal Act 1912 – appeal dismissed.
IN THE COURT OF
Monday 21 May 2001
Two police officers forcibly entered the respondent’s home and placed him under arrest for breaching bail and breach of an apprehended violence order. The respondent sprayed the two officers with the contents of a fire extinguisher. The first of two counts charged against the respondent was based on s33B of the Crimes Act 1900, using “an offensive instrument…with intent to…prevent …the lawful apprehension of himself“.
The issue in this case was whether the forcible entry into the respondent’s home was preceded with the formalities the common law requires in order for the attempted arrest to be “lawful” within the meaning of s33B. On the day in question, the police officers knocked on the door of the respondent’s house and repeated numerous times “Leslie, it’s the Police. Open the door, we need to speak to you”. There was no reply, although footsteps and other noises could be heard from inside the house. This request was repeated through an open window, and again at the front door. The officers left for a short time, and returned, saying, “Leslie O’Neill, it’s the police. Open this door. We need to speak with you.” This was repeated a few more times, and met with yelling from the respondent behind the door. He yelled, “get fucked. Leave me alone. I’m not opening this door.” One of the officers replied, “Leslie, this is the police. Open this door or I will open it.” The respondent continued to yell. Shortly after this, the officers kicked down the door and entered the house. The respondent attacked them with the fire extinguisher, striking one of the officers on the head with the canister once its contents were exhausted.
Judge Mahoney QC held that due to the officers’ failure to make a “proper announcement” of intention to arrest before the forcible entry, the respondent was entitled to a verdict of acquittal by direction. This is an appeal from that judgment.
Held (by Mason P, Sully and Dowd JJ agreeing, dismissing the appeal):
1. The ruling given by formal reasons in the present case had the effect of a rejection of the Crown case dependent on that evidence. This means that the ruling can be treated as an interlocutory judgment or order for the purposes establishing jurisdiction under s5F(2) of the Criminal Appeal Act 1912. R v Bozatsis and Spanakakis (1997) 97 A Crim R 296; R v Lissof  NSWCCA 364(referred).
2. Police officers commit a trespass unless their entry into private property is authorised or excused by law. Plenty v Dillon  HCA 5; (1991) 171 CLR 635 (referred). Save in exigent circumstances, “proper announcement” stating a lawful reason for entry without permission must precede entry. Lippl v Haines (1989) 18 NSWLR 620; Eccles v Bourque (1974) 50 DLR(3d) 753; Semayne’s Case  EngR 333; (1604) 5 Co Rep 91a; 77 ER 194 (discussed) Launock v Brown (1819) 2 B & Ald 592; 106 ER 482 (referred). The “cause” or “purpose” that must be announced by the officer and rejected by the resident is the basis for entry without consent. R v Briggs  1 NZLR 196; Miller v United States  USSC 131; 357 US 301, (1958) (referred).
3. This was not a case where earlier circumstances, together with the words used, would have expressed implicitly the officers’ intent to arrest. United States v Manning  USCA2 702; 448 F 2d 992 (1971); Semayne’s Case; United States v Santana  USSC 139; 427 US 38 (1976) (referred).
4. Appeal dismissed.
IN THE COURT OF
Monday 21 May 2001
1 MASON P: Invoking s5F(2) of the Criminal Appeal Act 1912, the Deputy Director of Public Prosecutions appeals against what is said to be an interlocutory judgment or order given in the District Court.
2 The respondent was charged on an indictment containing two counts:
(1) For that he on 28 November 1999 at Griffith in the State of New South Wales did use an offensive instrument with the intent to prevent the lawful apprehension of himself the said Leslie William O’Neill.
(2) In the alternative that he on 28 November 1999 at Griffith in the State of New South Wales did maliciously wound Wayne Nesbitt.
3 The respondent pleaded not guilty to each charge, the jury were empanelled and the trial commenced. The trial judge was his Honour Judge Mahoney QC and the venue was Griffith.
4 The nub of the Crown case was that two police officers, Constable Cox and Senior Constable Nesbitt had entered the respondent’s home to arrest him. Having gained entry forcibly they placed the respondent under arrest for breaching bail and breach of an apprehended violence order. Before the respondent could be subdued he sprayed the two officers with the contents of a fire extinguisher (count 1). When the extinguisher was emptied he then used it to attack and wound Senior Constable Nesbitt (count 2).
5 The first count was based on s33B of the Crimes Act which relevantly states:
Any person who uses… an offensive instrument … with intent to … prevent … the lawful apprehension … of himself … shall be liable to imprisonment for twelve years.
6 The relevant power of lawful apprehension without warrant is found in s352 of the Crimes Act 1900. However, the critical issue in the present case was whether the forcible entry into the respondent’s home was preceded with such additional formalities as the common law requires. Unless it was, the attempted apprehension was not “lawful” within the meaning of s33B.
7 The facts pertinent to that issue were summarised by the Crown as follows:
On 28 November 1999 Constables Nesbitt and Cox went to 4 Cedar Crescent Griffith, in order to investigate a matter. Whilst there, Constable Cox saw the respondent in the driveway of 8 Cedar Crescent, premises occupied by the respondent and his mother. The police officers went to that house.
Senior Constable Nesbitt knocked on the door and said “Leslie, it’s the Police. Open the door we need to speak to you”. This was repeated several times but there was no reply, even though footsteps were heard coming from inside the house.
Senior Constable Nesbitt looked through an open window into the house and said “Leslie. It’s the police. Come to the front door. We need to speak with you”. Again this was repeated and again there was no reply.
Someone was then heard to be running through the house and Constable Cox said “Leslie. It’s the police. Come to the front door. We need to speak with you”. Further sounds indicating that there was someone inside were heard.
The police officers went back to the front door and Senior Constable Nesbitt knocked on it once more saying “Leslie. This is Griffith Police. Come to the front door so I can speak with you”. When again no reply was heard, the police officers left the vicinity for a short time.
Upon returning to the house at 8 Cedar Crescent the police officers again approach the front door. Senior Constable Nesbitt knocked on it, saying “Leslie O’Neill, it’s the police. Open this door. We need to speak with you”. This time the respondent could be heard yelling something from inside the house although what he was saying could not be understood.
Senior Constable Nesbitt knocked on the door again saying, “Leslie. It’s the police. Open this door. We need to speak with you”. Again the respondent yelled out, but this time what he said could be understood. He yelled “get fucked. Leave me alone. I’m not opening this door”. Senior Constable Nesbitt replied “Leslie, this is the Police. Open this door or I will open it”. The respondent continued to yell through the closed door although, once more, what he was saying could not be understood.
Shortly thereafter the police forcibly entered the house and the events which formed the subject matter of the charges took place. Briefly, after the police forced their way into the house, the respondent attacked them with a fire extinguisher, spraying its contents at them and then, when it was exhausted, swinging the extinguisher so that it struck Senior Constable Nesbitt on his head.
8 Constable Cox gave evidence to the effect of this summary. During his evidence in chief there was discussion in the absence of the jury about the issues involved in the first count of the indictment. The learned trial judge referred to Halliday v Nevill  HCA 80; (1984) 155 CLR 1 and Lippl v Haines (1989) 18 NSWLR 620. Counsel agreed that the lawfulness of a forced entry to effect an otherwise lawful arrest by a police officer depended upon the latter having a reasonable belief that the alleged offender was on the premises; and that, save in exigent circumstances, a proper announcement must precede forcible entry.
9 Not long after cross-examination of Constable Cox had commenced the Crown Prosecutor was asked whether the Crown case got any stronger on the first count. He said that it did not. After the luncheon adjournment counsel for the accused applied for a directed acquittal on the first count.
10 Following argument his Honour delivered judgment. He said that the evidence was that the constables:
… on many occasions, suspecting that the alleged offender was in the house…, called upon him by his first name, announced that they were police, and called upon him to open the door because they wanted speak to him. He did not comply with their request.
His Honour recorded that the officers withdrew and took advice from senior police officers. They returned to the premises and once again Constable Nesbitt said: “Leslie, this is the police, open this door or I will open it”. A short time later the constables kicked down the front door of the defendant’s residence, causing it to open inwards. They were sprayed. The alleged offender told them to “fucking leave me alone, get out, this is my house”. Constable Nesbitt then told the respondent, “Leslie, it’s the police, you’re under arrest for breaching bail and an apprehended violence order, stop this nonsense”.
11 Judge Mahoney held that none of the statements made by the police before barging open the door amounted to a “proper announcement” as required in Lippl. In particular his Honour said:
Nothing that they had said to the alleged offender required him to respond or to co-operate with them. It was not until after they had broken into the place that it was announced that he was under arrest for breaching bail and apprehended violence.
Technically speaking, even if the announcement before the breaking into the place had been in those terms it would not have been good enough, because it would not have been what I would regard under all the circumstances a “proper announcement”. Even if I am wrong about that last matter, and even if the words “you’re under arrest for breaching bail and an apprehended violence order” did amount to a “proper announcement” within the terms of the summary I have sought to provide earlier, nevertheless, such proper announcement was not made until after the illegal entry.
12 The judgment concluded:
Therefore in my view the alleged offender is entitled to a verdict of acquittal by direction.
In the context, this addressed only the first count of the indictment.
13 The Crown Prosecutor thereupon applied to discharge the jury without verdict in order to receive instructions in relation to the ruling. It was sought to have the matter adjourned for two days. Judge Mahoney granted a short adjournment until 2.45pm that day.
14 Upon resumption, counsel for the accused applied for discharge of the jury because the accused was to appear or had already appeared in the Local Court at Griffith that day charged with 15 matters including break enter and steal, maliciously destroying property and firearms offences. Those matters had been in the list posted on the board outside the Local Court since early that morning and there was concern that the jurors may have seen that list. There had also been publicity in the local newspaper.
15 The application for discharge was not opposed by the Crown and it was granted. A change of venue was ordered.
16 The first issue facing the Crown in this appeal is the question of jurisdiction. Section 5F(2) requires an interlocutory judgment or order.
17 The Crown does not challenge the discharge of the jury and in any event that is not the relevant order. Had an acquittal been entered by direction, then the Crown would have faced the high threshold of s5A(2) of the Criminal Appeal Act 1912 which requires a “question of law” (see generally R v J (1987) 9 NSWLR 615).
18 Returning to s5F, there are circumstances where a ruling given by way of formal reasons which in substance reject the Crown case will be treated as “an interlocutory judgment or order” albeit that no formal or immediately dispositive order is made. The principles are discussed in R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 and R v Lissof  NSWCCA 364. Each case involved a ruling excluding evidence on a particular topic. However, the effect of each ruling was the rejection of a Crown case dependent on that evidence. The ruling in the present case is to similar effect. The respondent does not contend otherwise.
19 Turning to the merits of the appeal, the learned judge correctly held that police officers commit a trespass unless their entry into private property is authorised or excused by law (see Plenty v Dillon  HCA 5; (1991) 171 CLR 635 at 639). As expounded in Lippl, the common law authorises forcible entry to effect an arrest in circumstances attracting s352 of the Crimes Actprovided two conditions are satisfied. The presently relevant requirement is that, save in exigent circumstances, “proper announcement” must precede entry. This appeal raises the question as to what is a “proper announcement”.
20 The leading judgment in Lippl is given by Hope AJA. Gleeson CJ and Meagher JA agreed with his reasons although the Chief Justice added some reasons of his own. Both Hope AJA and the Chief Justice cite and apply the decision of the Supreme Court of Canada in Eccles v Bourque (1974) 50 DLR(3d) 753 as to the twofold precondition for forcible entry to effect arrest and as to the rationale therefor.
21 As to what is “proper announcement” the Supreme Court of Canada said (at 758):
No precise form of words is necessary. In Semayne’s Case [(1604)  EngR 333; 5 Co Rep 91a, 77 ER 194] it was said he should “signify the cause of his coming, and to make request to open [the] doors”. In Re Curtis  EngR 533; (1756), Fost. 135, 168 ER 67, nine of the Judges were of the opinion that it was sufficient that the householder have notice that the officer came not as a mere trespasser but claiming to act under a proper authority, the other two Judges being of opinion that the officers ought to have declared in an explicit manner what sort of warrant they had. In Burdett v Abbott  EngR 83; (1811), 14 East 1, 104 ER 501, Bayley J was content that the right to break the outer door should be preceded simply by a request for admission and a denial. The traditional demand was “Open in the name of the King”. In the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry.
22 Lippl did not explore the issue of “proper announcement”. It was there conceded that the condition was not satisfied, whether or not the officer concerned called out “Police here” before entry (see at 628D-E, 636C). Nevertheless, I read the judgments in Lippl as endorsing the reasoning in Eccles. Gleeson CJ said so explicitly at 622B, albeit that he offered a brief summary of Eccles in which he described the second condition in the following terms (at 622C-D):
Secondly, save in what the Supreme Court of Canada described as “exigent circumstances”, there must be a proper announcement prior to entry so that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force.
23 Hope AJA said this (at 631):
As I have indicated, the power of a constable, who holds a warrant to arrest, to enter premises forcibly was wider. As long ago as 1604 in Semayne’s Case  EngR 333; (1604) 5 Co Rep 91a; 77 ER 194, although it was recognised that in general terms the house of everyone is his castle, it was held that there were qualifications of which one was stated in this resolution:
“3. In all cases where the King is party, the sheriff may break the house, either to arrest or do other execution of the King’s process, if he cannot otherwise enter. But he ought first to signify the cause of his coming, and make request to open the doors.”
In reinforcement of this condition, it was resolved (5 Co Rep at 93a; 77 ER at 199):
“…admitting that the sheriff after denial made might have broke the house, as the plaintiff’s counsel pretend he might, then it follows that he has not done his duty, for it doth not appear, that he made any request to open the door of the house.”
These principles have been repeated over the centuries: see eg Hale, Pleas of the Crown (1736) at 582 and Foster, Crown Law (1762) at 320, 3rd ed (1809) at 319-321. They were applied in Burdett v Abbot  EngR 83; (1811) 14 East 1; 104 ER 501. This case concerned the execution of a warrant for contempt, which was regarded as a criminal process. Lord Ellenborough CJ said (at 158, 56):
“… and that the mode of executing that warrant in this case, by breaking the house, after due notification and demand of admittance without effect, is justifiable, upon the ground of its being an execution of a process for contempt, to which the personal privilege of the individual in respect to his door must give way for the public good.”
Grose J agreed. Bayley J said (at 162-163; 563):
“… Now in every breach of the peace the public are considered as interested, and the execution of process against the offender is the assertion of a public right: and in all such cases, I apprehend that the officer has a right to break open the outer door, provided there is a request of admission first made for the purpose, and a denial of the parties who are within.”
24 The references to notification of the “cause” (Semayne) or “purpose” (Burdett) of the requested entry are critical. The rationale is explained in the following terms (Eccles at 758, Lippl at 633-4):
Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations for this. An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance.
25 Unless the “exigent circumstances” exception applies (as to which see Lippl at 636-7) or unless statute provides to the contrary, the constable proposing to force entry in order to execute coercive process (cf Plenty at 641, 650-1) such as a search or arrest warrant or to effect an arrest must state a lawful reason for entry without permission. The “cause” or “purpose” that must be announced by the officer and rejected by the resident is a basis for entry without consent. Gleeson CJ refers to this in Lippl as the officer’s “authority”.
27 As indicated in the passage from Eccles and Lippl set out above, these principles stem from Seymane’s Case in 1604. That case and the academic and judicial learning discussion which followed it confine the principle to a private dwelling house (see generally Accarina v United States  USCADC 54; 179 F 2d 456 (1949)).
28 These principles were not met in the present case because the officers’ announcements went no further than to request entry on a basis which the respondent was entitled to refuse (ie “We need to speak to you”).
29 This was not a case where earlier circumstances would, together with the words used, have expressed implicitly the officers’ intent to arrest (cf Corpus Juris Secundum, “Arrest” §56 n86, United States v Manning  USCA2 702; 448 F 2d 992 (1971), cert denied 404 US 995). An extreme example of such phenomenon would occur if a person who was arrested or in the course of being arrested fled directly to his or her residence and the police followed in hot pursuit (see discussion in the report of Semayne in 77 ER at 196, United States v Santana  USSC 139; 427 US 38 (1976)).
30 The learned trial judge appears to suggest that an announcement of intention to arrest would not have sufficed in the present case (see the sentence commencing “Technically speaking” in the passage set out at par 11 above). I respectfully disagree. Had such announcement been made then breaking down the door would have been authorised, at least after a sufficient interval to infer non-cooperation. However, the judgment below does not stand upon that sentence and I would otherwise affirm it.
31 There is no need to address the respondent’s second submission which was that the police had no reasonable cause to suspect the respondent of having committed an offence.
32 The appeal should be dismissed.
33 SULLY J: I agree with Mason P.
34 DOWD J: I have read and concur with the proposed orders and the reasons therefore of Mason P