R v McCarthy [2018] NZDC 2474

Published 16 April 2018

Application for discharge — escaping lawful custody — whether custody was lawful — whether defendant was lawfully arrested — failure to provide correct details — power to arrest — New Zealand Bill of Rights Act 1990, ss 16 & 23 — Local Government Act 2002 — Criminal Procedure Act 2011, s 147 — Ngeru v Police. The defendant sought a discharge under the Criminal Procedure Act, s 147 on a charge of escaping lawful custody on the grounds that he was not lawfully in custody at the time of his escape as there was no lawful arrest. The defendant was told he was arrested for "failing to provide correct details" after he giving false information when a police officer asked his identity. The court noted that had the police officer arrested him for breaching the liquor ban then a valid arrest would have taken place, however the reason given at the time of the purported arrest was for failure to provide correct details. Rejecting the crown argument that the words of the arresting officer could not be taken in isolation, and that the defendant could be under no illusion as to why he was being arrested, the court found that "the collateral existence of a good and lawful arrest" could not excuse the obligation to give a correct reason for an arrest and the defendant was entitled to rely on the reason given by the police officer for the arrest. It was found that the defendant could not have escaped lawful custody and the charge was dismissed. Judgment Date: 13 February 2018.