Wednesday, 23 November 2011

Running from the police is not a crime

Edit: The decision was affirmed on appeal.

You can read our discussion about DPP v Hamilton [2011] VSC 598 here.

Not the offence of resisting police, anyway. Thanks to Jeremy Gans for letting me know about this pending appeal.

In Hemingway v Hamilton [2011] VMC 10 it was alleged that the accused had left a restaurant without paying the bill. When the police who arrived indicated to the accused that they wanted to speak to him he took off on foot, and a classic foot chase ensued of the kind that fans of The Bill will be familiar with.

The accused was arrested and charged with an offence under s 52 of the Summary Offences Act 1966 for resisting the officers. Magistrate Garnett dismissed the charge in April, and the DPP appealed.

As I said at the time, there isn’t anything surprising in the magistrate’s original decision, and I think it unlikely to be disturbed on the appeal. While not running from the police might be the right (and sometimes, smart) thing to do, absent a specific obligation the police force don’t own a tractor beam that requires anyone to stop when an officer shouts “Freeze!”

Magistrate Garnett went so far as to hint [at 9] that a different charge would have been successful in the same circumstances,

There has been a number of other of decisions to the effect that the offence of obstructing or hindering the police is committed if the acts of an accused make it more difficult for the police to carry out their duties: However, Mr Hamilton has not been charged with obstructing or hindering the police under s 52(1) of the Act. He has been charged with resisting LSC Hemingway in the execution of his duty.

Perhaps the appeal submits that the magistrate ought to have made the amendment to the cognate charge, pursuant to Thomson v Lee [1935] 360 and Heddich v Dike (1981) 3 A Crim R 139. It’s not clear from the article I read, but it doesn't appear that way.

Kaye J has reserved his decision.


Jeremy Gans said...

A judgment already. No surprises in the result. Whelan uses the 'execution of duty' phrase as his hook for picking up the 'right' to not cooperate with the cops. (A pity, perhaps, that he didn't apply the Charter too.) So, the appeal has resulted in confirmation that the same argument applies to hindering and obstruction.

The real surprise: that the DPP was willing to argue (presumably with a model litigant's straight face) that Victorians had their common law 'right' not to cooperate until arrested removed in the 1980s by Division 30A. Unbelievable.

Anonymous said...