Director of Public Prosecutions (NSW) v GW

[2018] NSWSC 50

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50

Hearing dates:

9 December 2016

Date of orders:

02 February 2018

Decision date:

02 February 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) The defendant be referred to by the use of the pseudonym "GW";

 

(2) The appeal be allowed in part;

 

(3) The order of Magistrate G Wilson made on 14 March 2016 at Dubbo Children's Court dismissing proceedings against the defendant for the offence of assault police officer in execution of duty, contrary to s 60(1) of the Crimes Act 1900; resist officer in the execution of duty, contrary to s 546C of the Crimes Act; and use of offensive weapon, contrary to s 33B(1)(a) of the Crimes Act, be set aside, pursuant to the terms of s 59(2) of the Crimes (Appeal and Review) Act 2001;

 

(4) The matter be remitted to the Children's Court at Dubbo for determination according to law;

 

(5) The defendant pay the plaintiff's costs of the appeal;

(6) The defendant be granted an indemnity certificate under the provisions of s 6(1) of the Suitors’ Fund Act 1951 in relation to the plaintiff's costs, and the defendant's costs pursuant to s 6(2) of the Suitors' Fund Act 1951.

Catchwords:

APPEAL – “question of law above” – magistrate’s decision not to disclose reasoning adequately nor conclusions of facts – magistrate failed to conduct balancing exercise under s 138 of Evidence Act – decision quashed.
ARREST – arrest for breach of bail without consideration of alternatives is not necessarily improper and the evidence obtained not necessarily in consequence of impropriety.

Legislation Cited:

Bail Act 2013 (NSW), s 77
Children (Criminal Proceedings) Act 1987 (NSW), s 8
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Act 1900 (NSW), ss 33B(1)(a), 60(1), 546C
Criminal Appeal Act 1912 (NSW), s 56
Evidence Act 1995 (NSW), s 138
Suitors’ Fund Act 1951 (NSW) s 6

Cases Cited:

Acuthan v Coates (1986) 6 NSWLR 472
Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
Director of Public Prosecutions (NSW) v AM (2006) 161 A Crim R 219; [2006] NSWSC 348
Director of Public Prosecutions (NSW) v Fairbanks (2012) 219 A Crim R 399; [2012] NSWSC 150
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 at 408
Krishna v Director of Public Prosecutions (NSW) (2007) 178 A Crim R 220; [2007] NSWCCA 318
Morris v the Queen (1987) 163 CLR 454; [1987] HCA 50
NT v R [2010] NSWDC 348
R v R (1989) 18 NSWLR 74
Robinson v Woolworths Ltd (2005) 227 ALR 353; (2005) 64 NSWLR 612; [2005] NSWCCA 426
Williams v the Queen (1986) 161 CLR 278; [1986] HCA 88

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (Plaintiff)
GW (Defendant)

Representation:

Counsel:
J Davidson (Plaintiff)
C Webster SC/S Anderson (Defendant)

  Solicitors:
Director of Public Prosecutions (NSW) (Plaintiff)
Aboriginal Legal Service (NSW/ACT) Limited (Defendant)

File Number(s):

2016/198781

Publication restriction:

The defendant be referred to by the use of the pseudonym "GW"

Judgment

1. HIS HONOUR: The Director of Public Prosecutions (NSW) (“the DPP”) appeals an order of the Local Court made at Dubbo Children’s Court dismissing proceedings against the defendant (“GW”) for the offences of assault police officer in the execution of duty, contrary to s 60(1) of the Crimes Act 1900; resist officer in the execution of duty, contrary to s 546C of the Crimes Act; and use offensive weapon, contrary to s 33B(1)(a) of the Crimes Act.

2. The learned Magistrate dismissed the matters following a voir dire, in which his Honour held that the evidence of Constable Smart was obtained by the Constable in circumstances that were, according to the learned Magistrate, improper and the evidence was excluded. That being the only evidence in relation to the charges, the charges were dismissed.

Factual Background

3. The facts may be summarised shortly and are in short compass. Moreover, the facts are generally uncontentious. Constable Smart was patrolling in a marked police car in the streets of Dubbo at or about 1:50am on 1 January 2016. He saw the defendant walking in the street and recognised that she was in breach of the curfew conditions of her bail. The defendant is a young Aboriginal person, who, at the time, was 14 years of age. The Constable was also well aware that the defendant was on parole for a serious offence and, according to the Constable, had "numerous breaches of bail" and "outstanding warrants".

4. The Constable called out to the defendant by name from within the police car. It is not absolutely clear from the evidence whether the defendant turned and ran away upon hearing her name or had earlier decided to flee upon, perhaps, seeing the police vehicle. Either way, there was only a split-second between the time when the Constable saw the defendant and when she commenced her flight.

5. The Constable alighted from the police car and pursued the defendant, in the Constable's words, to "stop the repetition of the offence" (which I take from the transcript to be a reference to the breach of bail conditions).

6. The Constable was also aware that that there were a number of unsatisfied or outstanding warrants issued in relation to the defendant: transcript 14 March 2016 page 10, 949-page 11, line 1. (As a fact this is contested, but there is no contrary evidence.)

7. The Constable, after calling out the defendant's name and alighting from the police car, gave chase and continued to call out her name, having already decided that he would arrest the defendant. The Constable did not consider doing nothing in relation to the breach of bail, nor applying to an authorised justice for a warrant to arrest her.

8. Before the Constable reached the defendant, the defendant picked up a rock and threw it at him. The rock hit the Constable in the face (a fact not contested on the voir dire) giving rise to the offences under ss 33B(1)(a) and 60(1) of the Crimes Act.

9. Eventually, Constable Smart and another officer, Constable Adams, apprehended the defendant by intercepting her and taking hold of her, taking her to the ground. They told the defendant she was under arrest and performed two "knee strikes" to her body after she refused to move her hands from a position in which they were tucked under her body. She was then handcuffed with her hands behind her back.

10. During the voir dire, the Constable made clear that because of the instant or short amount of time between seeing the defendant and her flight, he did not consider any other alternative conduct in relation to the breach of bail. At the time that the chase and arrest occurred, the Constable was aware of the defendant's address and that the defendant was a "repeat offender".

Decision of Magistrate

11. The voir dire was conducted efficiently and the only evidence adduced was that of Constable Smart. The Constable was cross-examined during the course of the voir dire. At the end of the cross-examination, brief submissions were put to the Magistrate.

12. It was correctly conceded, during the submissions, that the Constable had the power to arrest for breach of a bail condition, pursuant to the terms of s 77 of the Bail Act 2013. The issue raised, relying on the judgment of Tupman DCJ in NT v R [2010] NSWDC 348, was that, in the absence of a consideration of the alternatives to arrest for breach of a bail condition contained within s 77 of the Bail Act, the immediate decision to arrest the defendant was improper or involved an impropriety.

13. As a consequence of the suggested impropriety, the evidence that was obtained from the time that the decision was made to arrest (without consideration of the other alternatives) until the time of the arrest should not be admitted. The consequence of a ruling on the inadmissibility of the evidence would be that the conduct of the defendant giving rise to the offences would be unable to be adduced and the prosecution would necessarily fail.

14. The decision of the learned Magistrate was extremely brief. The Magistrate referred (without explanation) to s 138 of the Evidence Act 1995 and described the foregoing provision in the following manner:

“dealing with the exclusion of evidence if it's considered that such evidence is improperly [obtained] or in contravention of an Australian Law is then not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained."

15. The learned Magistrate then referred to the fact that detailed evidence had been adduced as to the detention and arrest of the defendant and commented that that evidence, or those circumstances and the state of mind of the Constable, had been taken into account (without summarising or describing the evidence or the state of mind). The Magistrate’s decision: noted that the Constable did not take into consideration alternatives to arrest; noted that the Constable engaged in a foot pursuit; referred to the judgment of Tupman DCJ and the similarity of the circumstances; and concluded that the evidence obtained was "improperly obtained and that the evidence therefore should be excluded with regard to the events that occurred in pursuing the young person that morning".

Appeal and Grounds of Appeal

16. The appeal by the DPP is pursuant to the terms of s 56 of the Crimes (Appeal and Review) Act 2001, which provides a right of appeal to the Supreme Court by a prosecutor and against an order by the Local Court dismissing a matter the subject of any summary proceedings, but only on a ground that involves "a question of law alone".

17. The meaning of the term "a question of law alone" has been the subject of consideration in the context of s 56 of the Crimes (Appeal and Review) Act and in the context of the Criminal Appeal Act 1912. It is sufficient, for present purposes, to remark that a question of law alone does not include a question of mixed fact and law: Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88; Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50; R v R (1989) 18 NSWLR 74; Krishna v Director of Public Prosecutions (NSW) (2007) 178 A Crim R 220; [2007] NSWCCA 318; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322; Director of Public Prosecutions (NSW) v Fairbanks (2012) 219 A Crim R 399; [2012] NSWSC 150.

18. The DPP raises eight grounds of appeal alleging error of law, in the following terms:

“(i) Failing to identify with sufficient particularity what, in the context of this case, was the minimum standard which society expected of Constable Smart;

(ii) Failing to consider whether the conduct of Constable Smart was 'clearly inconsistent' with any identified standard of conduct;

(iii) Impermissibly holding that Constable Smart's alleged failure to 'take into consideration various options' was capable of amounting to impropriety within the meaning of s 138 of the Evidence Act 1995;

(iv) Failing to give adequate reasons for the apparent finding that embarking on a foot pursuit of the defendant amounted to impropriety within the meaning of s 138 of the Evidence Act;

(v) Failing to consider whether the excluded evidence of the alleged offences was obtained 'as a consequence' of the apparent impropriety in pursuing the defendant, and in particular, failing to consider whether the evidence was a 'likely consequence' of the impropriety found;

(vi) Failing to undertake the balancing exercise in s 138(1) of the Evidence Act, including assessing the matters set out in s 138(3) of the Evidence Act, or to give adequate reasons for that exercise;

(vii) Failing to consider the gravity of the alleged impropriety in the circumstances of this particular case as required by s 138(3)(d) of the Evidence Act;

(viii) Dismissing the matter."

19. The whole of the decision is appealed.

Submissions and consideration

20. Initially, by correspondence, the defendant confirmed that they would concede, at least, grounds (iv) and (vi) of the Summons and sought to have the Court enter consent orders and vacate the hearing. The plaintiff sought to press all grounds and sought a judgment dealing with each of the grounds.

21. Apart from the concession to which reference has just been made, the Written Submissions of the defendant conceded grounds (i), (ii), (iv), (v), (vi) and (vii); but did not concede ground (iii). Consent, however, does not provide a basis for the jurisdiction of the Court. It is necessary to deal with the issues.

22. The Court acknowledges the enormous workload on Local Court Magistrates and the need for them to deal with matters efficiently and, usually, ex tempore. The only requirement on a Magistrate, in relation to reasons for judgment, is that the reasons disclose the process by which a conclusion has been reached and the rationale for that conclusion.

23. While more lengthy reasons may be of assistance, particularly when there are available appeals, failure to give more than that which is sufficient to explain adequately the findings made, and give the reasons for them, does not amount to an error of law. It is the substance of the Magistrate's decision that is important and due regard must be had to the fact that, on appeal, we are examining an unedited and unpunctuated record of ex tempore remarks in an extremely busy court: Acuthan v Coates (1986) 6 NSWLR 472 at 478-479; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 at 408 ([17]-[19]).

24. It is unnecessary, and would be tedious, to repeat the decision of the Magistrate, albeit short. It is sufficient to make clear that the Magistrate did not refer, in any part of the reasons for judgment, to any test on impropriety or any reason for the finding that embarking on a foot pursuit amounted to an impropriety. His Honour did refer to the judgment of Tupman DCJ, to which earlier reference has been made, and the possibility of alternatives, but not to the basis upon which impropriety arose (or the meaning of the term).

25. Further, no attempt was made by the Magistrate to undertake the balancing exercise required under s 138 of the Evidence Act.

26. The provisions of s 138 of the Evidence Act require a court to balance the desirability of admitting the evidence against the undesirability of admitting it because of the manner in which it has been obtained. A court is permitted to take into account any relevant matter in the course of undertaking that exercise. The Evidence Act (s 138(3)) prescribes certain factors that may be utilised and they include: the probative value of the evidence; the importance of the evidence in a proceeding (to the extent that be different); the gravity of the impropriety or contravention; whether the impropriety or convention was deliberate or reckless; and the nature of the relevant offence (in criminal proceedings).

27. Assuming, without deciding, that the conduct of the Constable was an impropriety, the probative value of the evidence sought to be adduced is fundamental; its importance is crucial; the impropriety (on the finding of the Magistrate) was not deliberate and, it would seem, not reckless; and the gravity of the impropriety does not seem to be great. None of these issues were discussed in the ex tempore reasons announced by the Magistrate. In short, no balancing exercise was undertaken.

28. There are more fundamental issues. It does not seem, on the facts that are uncontroverted, that the evidence was obtained improperly. The evidence of the Constable was a description of that which the Constable saw and observed, being the throwing of the rock and other matters discussed. Further, the arrest was not illegal or in contravention of the law. The police had the power to arrest.

29. Nice questions arise as to whether the evidence "was obtained … in consequence of an impropriety". Unless one took a "but for" approach to the term "in consequence of" and accepted the view that the assault and the resisting would not have occurred “but for” the chase by the police, it is not abundantly clear why the evidence of the throwing of the rock and the resisting of arrest was the consequence of an impropriety. It certainly was not the consequence of a contravention of any law.

30. Given the brevity of the reasons and the failure to explain that which rendered the conduct an impropriety or to undertake the balancing exercise required by s 138 of the Evidence Act, the reasons for judgment are inadequate and the submission underpinning grounds (iv) and (vi) must be upheld. Further, the inadequacy of the reasons, in that regard, also establish the underlying submission raised by: ground (i) (a failure to explain impropriety by reference to minimum standards of society); ground (ii) (failure to explain how the Constable’s conduct was clearly inconsistent with such standard); ground (v) (how the evidence was obtained "as a consequence" of the impropriety); and ground (vii) (undertaking of balancing exercise and considering the gravity of the alleged impropriety to which the provisions of s 138(3)(d) of the Evidence Act refers).

31. The only remaining ground is that raised by ground (iii) of the Summons, cited above, (the failure to take into consideration other options being not capable of amounting to an impropriety within the meaning of s 138 of the Evidence Act). The defendant opposes the Court dealing with ground (iii), as it is unnecessary to resolve the issue.

32. Of greater difficulty is whether any of the foregoing are "questions of law alone". In relation to ground (iii), in particular, it is not immediately apparent how such a ground could be determined without examining and making conclusions on questions of fact.

33. To overcome the foregoing issue, the DPP submits that the approach adumbrated by Basten JA in Robinson v Woolworths Ltd (2005) 227 ALR 353; (2005) 64 NSWLR 612; [2005] NSWCCA 426 should be utilised. In Robinson, the Court was dealing with a stated case. That approach, as adopted by the DPP for these proceedings, was to raise on appeal the question that: on the findings of fact [identified] was the conduct capable of constituting "improper" conduct or an impropriety for the purpose of s 138(1) of the Evidence Act? (See Robinson, supra, at [8]).

34. The difficulty with such a suggestion in these proceedings is that the brevity of the reasons for judgment does not allow one to identify with any clarity the findings of fact upon which the Magistrate relied to conclude that an impropriety occurred, unless one were to take the view that the only fact upon which the Magistrate relied was the failure by the Constable to consider options other than giving chase or arrest prior to commencing the chase.

35. At least on one reading, of the reasons for judgment of the Magistrate, the "improper" conduct and the "impropriety" was based solely on that issue. In that regard, the learned Magistrate seemed to follow the conclusion reached by the District Court in NT v R, supra.

36. It is unnecessary and inappropriate to comment on the outcome of the proceedings in NT v R. Every situation is different.

37. Where a judicial officer is considering whether an act is improper or evidence is the result of an impropriety, all of the relevant facts and circumstances must be considered. In the present proceedings, according to the Constable, there were outstanding warrants against the defendant.

38. If there were warrants, being, in this context, bench warrants, for failure to appear, it was not only appropriate but necessary for the Constable to arrest the defendant. The foregoing does not suggest that bail could not be granted, once an arrest had been effected, but a bench warrant is a direction by a court to apprehend the person named in the warrant. Yet, no consideration was given to that aspect.

39. Moreover, even if, as is suggested by the defendant in the proceedings before the Court, no such warrants existed, a belief, on reasonable grounds, possessed by the Constable, that such warrants did exist, would render appropriate, or not improper, the chase and the arrest.

20. It is not every case of a failure to consider all of the options available for a breach of bail that would render an arrest or chase improper. The circumstances of that situation must be considered.

21. Where, as here, the defendant flees arguably even before the chase commences, there may be insufficient time to consider the other options available under s 77 of the Bail Act. If there were insufficient time in an urgent situation, it could not be said to be improper for a police officer not to consider every other option. An example may suffice.

22. Let us assume bail is granted on conditions which include a restriction on the presence of an accused within a specified distance of her or his spouse's residence. Let us further assume, that a police officer, knowing of the conditions of bail, observes the accused in the front yard of the accused's spouse's residence. The failure to consider the options available other than arrest may be wholly appropriate because of the perceived urgency. There is no blanket rule.

23. The reasons of the learned Magistrate did not disclose conclusions of fact from which one can assume or determine that the conduct of failing to consider options other than arrest was an impropriety. Nor do the reasons disclose whether the Constable had sufficient time to consider other options. The judgment of her Honour in NT v R is not a prescription that should be applied to every situation of arrest, without regard to the circumstances that led to a failure to consider other options.

24. Nothing in the foregoing should be taken to condone or to encourage the arrest or continued detention of young persons and, in particular, young persons of Aboriginal descent. It is a blight on society that, despite the findings of the Royal Commission into Aboriginal Deaths in Custody and since those findings have been published, there has been an increasing rate of incarceration of persons of Aboriginal descent.

25. The experience of those involved in this area is that positive, therapeutic steps, such as those undertaken in Redfern under the guidance of Inspector Freudenstein, have a far greater effect on the incidence of criminal conduct and the incarceration of Aboriginal persons than continued arrest of such persons and their continued involvement in the cycle of criminality associated with custody. Further, culturally appropriate steps are more effective in achieving a positive outcome.

26. Lastly, it is necessary, given the foregoing comments, for the Court to reinforce the comments (usually made in the context of a bail application) that it is inappropriate for the powers of arrest to be used for minor offences, where the defendant's name and address are known and there is no risk of the defendant fleeing. Further, in particular, the provisions of s 8 of the Children (Criminal Proceedings) Act 1987 (NSW) emphasise the inappropriateness of treating the arrest of a young person as the first and primary option, even though arrest may "technically" be permitted.

27. The defendant relies upon the comments of Hall J in the Director of Public Prosecutions (NSW) v AM (2006) 161 A Crim R 219; [2006] NSWSC 348 at [34], in which his Honour emphasises the general principle that an arrest of a young person is to be avoided wherever possible and the use of a court attendance notice would be a more appropriate avenue, in most circumstances.

28. However, as can be seen from the discussion by Hall J (at [55]-[62]), an arrest is not always improper and the conduct arising from the chase is not necessarily, on the facts of this matter, one that "stemmed from an ill-advised and unnecessary arrest". Rather it may well have been "within the bounds of what might be considered to be an appropriate or permissible response to the continuing and wilful conduct of the defendant".

29. In other words, whether the conduct of Constable Smart was "improper" depends upon conclusions of fact that have not been determined. The Court, on this appeal, is not in a position, absent those facts, to determine whether it was open to the Magistrate to determine that the chase was improper.

30. Even if the chase were improper, the Court, as presently constituted, is not in a position, absent findings of fact, to determine whether the evidence to be adduced by Constable Smart is evidence obtained as a consequence of that impropriety.

31. Moreover, the Court, on this appeal, ought not determine whether the balancing exercise under s 138 of the Evidence Act would be exercised by it in a manner differently than the exercise by the Magistrate. Nevertheless, it is appropriate to comment that the balancing exercise was not undertaken by the Magistrate and the result of such a balancing exercise may have, and probably would have, reversed the conclusion.

32. I return then to the appropriateness of the orders sought and whether an appeal lies under s 56 of the Crimes (Appeal and Review) Act.

33. As is clear from the foregoing, the determination of whether the conduct of the Constable was improper or otherwise, would, in the absence of findings of fact (and regardless of the care with which a ground were crafted) require the Court to determine facts such that the ground is a mixed question of fact and law.

34. Nevertheless, the reasons for judgment of the learned Magistrate are before the Court. The content of those reasons is a fact that is not and could not be in dispute. As a consequence, the Court is capable of determining whether, on the aforesaid fact, agreed or undisputed, there is error of law that has affected the decision.

35. The Court is able, on that basis, to determine, at least, that there is error of law and that error is that: the reasons for judgment are insufficient; and there has been a failure to consider all relevant factors. To the extent that the grounds of appeal raise those issues, it is a ground that raises a question of law alone.

36. In those circumstances, the Court makes the following orders:

1. The defendant be referred to by the use of the pseudonym "GW";

2. The appeal be allowed in part;

3. The order of Magistrate G Wilson made on 14 March 2016 at Dubbo Children's Court dismissing proceedings against the defendant for the offence of assault police officer in execution of duty, contrary to s 60(1) of the Crimes Act 1900; resist officer in the execution of duty, contrary to s 546C of the Crimes Act; and use of offensive weapon, contrary to s 33B(1)(a) of the Crimes Act, be set aside, pursuant to the terms of s 59(2) of the Crimes (Appeal and Review) Act 2001;

4. The matter be remitted to the Children's Court at Dubbo for determination according to law;

5. The defendant pay the plaintiff's costs of the appeal;

6. The defendant be granted an indemnity certificate under the provisions of s 6(1) of the Suitors’ Fund Act 1951 in relation to the plaintiff's costs, and the defendant's costs pursuant to s 6(2) of the Suitors' Fund Act 1951.

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Amendments

05 February 2018 - Covers sheet - Error corrected in Case name.

Decision last updated: 05 February 2018