Police lose appeal on bail arrest
Police do not have the power to enter a person's house without permission to arrest them without warrant on a breach of bail, an ACT Supreme Court judge has ruled.
The ruling came after police appealed the earlier decision of a magistrate, who had found for the arrested person and dismissed a charge against her that had been laid after she had resisted her arrest.
The police were not lawfully exercising their functions when they were inside the house and so the offence was not made out, the magistrate found.
The charges had stemmed from an incident on March 26, 2017, when two police officers went to the home of Valentina Thomson to arrest her for an alleged breach of bail.
Ms Thomson stepped outside her front door and police told her she was under arrest for a breach.
She went back inside but police followed her in. The officers used force to arrest Ms Thomson, and she was charged with resisting a public officer after she resisted the arrest.
Late last year a magistrate dismissed that charge, finding that a police officer arresting a person without warrant on a breach of bail was not entitled to enter a person's home to complete the arrest.
And in an ACT Supreme Court decision published on Tuesday, Justice David Mossop upheld the magistrate's decision and dismissed the police appeal.
He said that in 1994, the ACT parliament enacted a package of legislation relating to arrests, which included moving the power to arrest for breach of bail conditions from bail legislation into crimes legislation.
At the time, the legislature specifically set out the powers of police to enter a home to arrest someone.
"Those powers related to arrest with or without a warrant where a person was believed to have committed an offence. Limitations on the offences in relation to which the powers existed and the circumstances in which the power could be exercised were also imposed.
"No express statutory power to enter premises was given in relation to arrest for breach of bail conditions.
"As a consequence, because no express statutory power of entry was given in relation to arrest for breach of bail conditions, the present provision in s 56A of the Bail Act does not authorise entry onto premises in circumstances that would amount to a trespass.
"For this reason the magistrate’s decision was correct and the appeal must be dismissed."