Criminal Charges Can be Thrown Out of Court if an Arrest is Unlawful

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By Paul Gregoire and Ugur Nedim

The former mother-in-law of Rodna Jankovic took out an apprehended domestic violence order (AVO) against her previous daughter-in-law on 20 October 2015. However, on 25 March the following year, Ms Jankovic violated the order by sending a text message to her ex-partner’s mother.

The SMS tansmission warned the woman not to contact the foster agency in regard to Jankovic and threatened to sue her if she does so. The ex-mother-in-law then contacted Maroubra police station, who in turn contacted Chatswood police station asking staff to arrest Jankovic for contravening the AVO.

Leading Senior Constable Drylie and Constable Holden then paid the Ms Jankovic a visit. Drylie checked Jankovic’s criminal history beforehand and found that she had been convicted of breaching a previous AVO. The officer later testified that he went to the residence to “effectively” arrest the woman.

During the visit, Drylie asked Jankovic about sending the text, to which the suspect replied, “Yes, I’m sick of her getting people to harass me.” The officer then advised Jankovic that he was arresting her for breaching the AVO. He did this in circumstances where there was no warrant for the woman’s arrest.

The senior constable later testified in court that he never considered the alternative of issuing a court attendance notice to Ms Jankovic, and that later conduct by Jankovic whilst she was in custody that day led to charges being laid against her.

Initial appeal dismissed

On 15 February 2017, Jankovic was found guilty in the NSW Local Court on three charges relating to her post-arrest behaviour. The first was one count of resisting an officer in the execution of duty, contrary to section 58 of the Crimes Act 1900. That offence carries a maximum penalty of 5 years’ imprisonment.

The suspect was also charged and subsequently found guilty by a magistrate on two counts of intimidating a police officer whilst in the execution of their duty under section 60 of the Crimes Act. This offence also comes with a maximum penalty of 5 years in prison.

Jankovic appealed her conviction to the NSW District Court later that year. The basis of the appeal was that her arrest was unlawful because constable Drylie did not comply with the provisions of section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA).

Section 99(1)(b) of the LEPRA stipulates that an arrest without a warrant can only be made if an officer is satisfied it’s “reasonably necessary” based on at least one of nine provided reasons, including “to stop the person committing or repeating the offence or committing another offence”.

However, District Court Judge Paul Conlon dismissed the appeal on 4 October 2017.

A question of law

On 6 May 2019, Judge Conlon also knocked back a request from Jankovic that he put a jurisdictional question to the NSW Court of Criminal Appeal (NSWCCA) relating to her case.

The request was made under the provisions of section 5B of the Criminal Appeal Act 1912 (NSW), which provides that a party to a District Court appeal can submit a question of law to the NSWCCA, within 28 days after the end of the proceedings, or later if the appeals court will allow it.

The question Jankovic wanted to put to the NSWCCA was whether the evidence was capable of establishing beyond a reasonable doubt that Drylie was satisfied that the arrest was reasonably necessary for one or more of the reasons set out in section 99(1)(b) of the LEPRA.

His Honour refused to put the question to the NSWCCA as he found it to be “so obviously frivolous and baseless that its submission would be an abuse of process”. This shows that the trial judge was of the opinion that Drylie had been satisfied that the arrest met the LEPRA requirements.

Jurisdictional error

On 28 October 2019, Jankovic appealed Judge Conlon’s decisions to the NSW Court of Appeal (NSWCA). She did so on two grounds. The first was that the judge made an error in finding Drylie was satisfied the arrest was reasonably necessary.

And the second ground was that the question of law should have been put to the NSWCCA.

Jankovic also aimed to establish that both these grounds were jurisdictional errors, as section 176 of the District Court Act 1973 (NSW) maintains that the NSW Supreme Court cannot intervene in a District Court appeal judgement. The Supreme Court includes both the NSWCA and the NSWCCA.

However, the Supreme Court can intervene in District Court appeal matters when a jurisdictional error has been made. A jurisdictional error occurs when a judicial officer makes a decision outside the limits of the functions or powers of the court they’re presiding over.

Reasonably necessary

Jankovic argued that although Judge Conlon stated in his reasons that constable Drylie had carried out the arrest because he thought it was reasonably necessary to prevent repeat offences, there was nothing in the evidence to establish that this was the case.

NSWCA Acting Justice Reginald Barrett set out that instead of it being established with Drylie that he conducted the arrest to prevent further offences, his Honour came to this conclusion himself. And thus, the idea that the constable thought it reasonably necessary had never been verified.

Indeed, what did occur was that the trial judge decided that the senior constable had arrived at a certain decision with no evidence. And this was something the judge lacked authority to do, which then constitutes a jurisdictional error, which the appeals court is permitted to correct.

That question of law

On whether the decision not to submit Jankovic’s question to the NSWCCA was an error, Justice Barrett found that it was, as Judge Conlon had come to the conclusion that the question was unfounded based on his own misjudgement in relation to the matter of the first ground.

“The question that the primary judge declined to submit to the Court of Criminal Appeal was neither frivolous nor baseless,” his Honour said, adding that not to act on this was a refusal to act on jurisdiction when it should have been exercised, and therefore it was a jurisdictional error.

Thus, both grounds were jurisdictional errors and open to Supreme Court correction.

The orders

On 5 March this year, Justice Barrett ordered that Judge Conlon’s decision to uphold Jankovic’s convictions be quashed, and that the matter be remitted to the District Court to be determined in accordance with the law.

Justice Robert Macfarlan agreed with the findings of Justice Barrett. Whereas Justice Richard White didn’t agree that the decision to dismiss the original appeal was a jurisdictional error, as even though there was an error at law, it was still within the court’s jurisdiction to make that decision.

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