Charges fail — arrest not lawful

Press, Volume CXVI, Issue 34151, 12 May 1976, Page 11

Charges fail — arrest not lawful

Charges of assaulting a police constable and resisting arrest, brought against a youth who allegedly hit a policeman in the arm, were dismissed in the Magistrate’s Court yesterday.

Mr W. F. Brown, S.M., said that he dismissed the charges because the defendant had been unlawfully arrested and had not therefore assaulted or resisted a constable in the execution of his duty.

Charges of theft of clothing, belonging to persons unknown, and of being unlawfully on premises had earlier been dismissed.

A female witness gave evidence that she found the defendant and another man in her house without an excuse, and that they had run away. The arresting constable told the Court that the neighbourhood had been cordoned off by the police following a complaint by the woman. He stopped two men fitting the descriptions, one of whom was arrested and had subsequently been charged. The other man, the defendant, ran away over several fences. He was however not wearing clothing that fitted the description given by the complainant. Some time later the man was again seen, but again vanished, before being finally located and pursued up a driveway and over a fence. When caught, he was wearing yet a third set of clothes.

He allegedly struggled violently, and bit a constable in the arm. The wound became septic and the constable required several days off duty. In the same incident a police dog had jumped over the fence and the defendant had gone “berserk” and began kicking it violently and threatening to kill it. He had also picked up a log and threatened the constable. Counsel (Mr M. F. McClelland) said that it could not be proved that the defendant and the man unlawfully on the premises were the same and that there was a lot of confusion over the three changes of clothes. He suggested that the police had only brought the theft charge to explain the presence of the different sets.

The Magistrate said that the courts had to be extremely careful over the question of identity. Therefore the theft charge and the unlawful presence charge were dismissed. Counsel had submitted that the defendant and the wanted man could not be proved to be the same person, and that the man’s arrest was therefore unlawful. The defendant had been justified in running away from the police. The Magistrate, agreed that the arrest was unlawful and said the charge of resisting arrest was not valid. On the question of assaulting a police constable in the execution of his duty, he said that the dismissal of the previous charge meant that the constable was not in the execution of his duty, although he had been assaulted.