The right to bite

Friday’s other Charter case – or, more exactly, other passing mention of a possible future application of the Charter by a dissenting Court of Appeal judge – was a criminal appeal, R v De Simone [2008] VSCA 216.

In 2004, businessman, property developer and walking criminal law exam problem Giuseppe de Simone was shopping for groceries at the Coles in Barkly Sqaure, Brunswick. Alas, his shopping, while otherwise routine, included opening a four-pack box of ice-creams and eating one of them, an event observed by two store employees. When de Simone fronted at the check-out, the box was nowhere to be seen and he made no mention of it. After he was challenged, he claimed to have forgotten about it and offered to pay for a whole box and keep only three of the ice-creams. The store manager would have none of that, insisting that he pay for the whole box and keep none of them.

After that promising start, things went downhill. Voices were raised. The store manager tried to stop de Simone from leaving. A secutity guard intervened and the police were called, responding to a claim that someone was being ‘aggressive’. When the two cops arrived, an argument erupted and all three ended up on the ground. It was at that point that de Simone bit Constable Baynes on the forearm. De Simone later insisted that he was being suffocated and needed to bite the officer to breathe. The incident quickly led to the use of handcuffs, capscium spray and the issuing of charges of theft, intentionally causing injury and assaulting a police officer. 

Alas for my law students, the interesting theft charge was dropped. Although de Simone was convicted of the other charges and fined $6000, the Court of Appeal unanimously allowed his appeal on the grounds that the trial judge fluffed his response to a jury request to read the transcript of evidence of eyewitnesses to the events before the bite. They generously entered an acquittal, on the ground that a new trial would be ‘a scandalous waste of public money’, though Mark Weinberg JA chastised de Simone as foolish and pointed out that his actions were costly for both himself and the community. Oh, that wasted unfinished box of ice-creams! (It seems that de Simone has a habit of getting into these sorts of tangles.)

The Charter issue arose in relation to a further question (which wasn’t necessary to decide) about the legality of the police’s actions. Except in special circumstances, police cannot use force to arrest someone without first telling them that they are under arrest and the reasons for that arrest. De Simone testified that the police didn’t tell him he was under arrest, but rather just leapt on him while he was loudly asking to see a lawyer. Several independent witnesses didn’t hear the arresting words either. But the police insisted they went by the book. Justice Neave discussed the possibility that the police said the words but de Simone didn’t hear them, noting that there was a line of authority that suggested that the lawfulness of an arrest depends on what the police said, not what the arrestee heard. Believe it or not, one UK precedent involved the arrest of a deaf man who couldn’t lip-read. Neave footnoted that precedent (and the more routine scenario of an arrestee who can’t speak English) with the following comment:

Query whether this conclusion could be challenged under the Charter of Human Rights and Responsibilities Act 2006.

Like Warren CJ in the other Charter case brought down that day, Neave unfortunately didn’t state which right she had in mind.Presumably, though, it was the Charter’s equality rights with respect to impairment and race, presumably tied with the conduct mandate.

The issue of the legality of arrest is a very complex one. Arrest both removes and adds rights, and it might arise in court as an element of a criminal charge (as here) or as a defence to a cause of action (ike false imprisonment or a collateral admissibility issue.) Neave suggested that de Simone’s possible unawareness that he was being arrested might be grounds for a defence of self-defence to the charge of causing serious injury. But the majority disagreed, citing a line of cases that have held that various purported arrestees can have knowledge of the reasons for their arrests imputed to them. For example, in one NSW case last year, a court held that  a woman arrested for a murder (when it turned out that she had briefly left the room during the killing) would have known the reasons for her arrest despite the police forgetting to tell her. This would seem to be an execption to this Charter right:

21(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.

But I think the majority’s reasoning was flawed. De Simone’s claim wasn’t (just) that he didn’t know why he was being arrested, but also that he didn’t know he was being arrested at all. It’s much harder to impute that knowledge, especially when the alleged crime is so very minor.

That being said, I don’t think Neave’s Charter reference went far enough. She thought that de Simone’s non-hearing could only be relevant to the charge of causing injury (i.e. biting), but wouldn’t be relevant to the other charge de Simone faced:

31(1) A person who-…  (b) assaults or threatens to assault, resists or intentionally obstructs- (i) a member of the police force in the due execution of duty;…  is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum).

The reason she cited was a High Court decision, R v Reynhoudt [1962] HCA 23, on an earlier version of this section, where the court astonishingly held that there was no requirement for the prosecution to prove that the defendant knew that the police officer was acting in the ‘due execution of duty’.

I think Reynhoudt is ripe for reconsideration. The case was decided in 1962 and, since then, Australian criminal law has firmed up about the need for mens rea requirements when it comes to offences carrying significant penalties outside of regulatory contexts. Moreover, it was a 3-2 decision. The dissenters were Dixon and Kitto, while the majority were Menzies, Taylor and Owen (who????). Of course, it might be objected that any reconsideration would have to be by the High Court and that the legislature’s re-enactment of the provision since Reynhoudt shows that the interpretation was approved. But neither of these considerations apply under the Charter’s interpretation mandate, which not only permits but requires the revisiting of settled interpretations where an issue of Charter compatibility arises. And surely, there’s an issue of Charter (s. 21(1)?) compatibility with a provision that exposes someone to five years imprisonment for fighting back against what they perceived to be an act of unlawful state oppression? Now, there’s a Charter question to flag for the future.

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