Director of Public Prosecutions (NSW) v Owen

[2017] NSWSC 1550

Supreme Court

New South Wales

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550

Hearing dates:

6 November 2017

Decision date:

17 November 2017

Jurisdiction:

Common Law

Before:

R A Hulme J

Decision:

1. Appeal allowed.
2. The order made in the Local Court on 10 March 2017 dismissing the proceedings against the defendant in respect of charges of resisting and assault police officers in the execution of their duty is set aside.
3. The matter is remitted to the Local Court to be dealt with according to law.

Catchwords:

APPEALS – prosecution appeal – whether magistrate erred by excluding all prosecution evidence of defendant resisting arrest and assaulting officers – decision to exclude was in error – dismissal of charges set aside – remitted to Local Court

 

EVIDENCE – defendant arrested on outstanding warrant – failure to caution – police officers’ evidence of defendant’s conduct post-arrest at issue – charged with resist arrest and assault police officer – s 138 Evidence Act 1995 – whether improperly obtained or in consequence of impropriety – “good practice” to caution irrespective of questioning – not an obligatory duty – not an impropriety for purposes of s 138 – further question of causation – lack of caution unconnected to evidence of defendant’s conduct

EVIDENCE – unclear on what basis evidence excluded – s 139 Evidence Act 1995 – no questioning – s 139 had no application

Legislation Cited:

Crimes Act 1900 (NSW) Part 10A, s 356H
Crimes (Appeal and Review) Act 2001 (NSW) s 56
Crimes (Sentencing Procedure) Act 1999 (NSW) s 25(2)
Evidence Act 1995 (NSW) ss 138, 139
Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases Cited:

Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219
Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151
Director of Public Prosecutions v Coe [2003] NSWSC 363
R v Dalley [2002] NSWCCA 284; 132 A Crim R 169
R v G [2005] NSWCCA 291
R v Ladocki [2004] NSWCCA 336
R v Naa (2009) 76 NSWLR 271; [2009] NSWSC 851
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426
Severino v R [2017] NSWCCA 80

Texts Cited:

Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence)

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (Appellant)
Joshua Owen aka James Owen (Respondent)

Representation:

Counsel:
Ms A Mitchelmore (Appellant)
Mr J Brock (Respondent)

  Solicitors:
Solicitor for Public Prosecutions
Mitchell Lawyers

File Number(s):

2017/133036

 Decision under appeal 

Court or tribunal:

Local Court

Date of Decision:

10 March 2017

File Number(s):

2016/132210

Judgment

1. HIS HONOUR: This is an appeal by the Director of Public Prosecutions (the Director) against the dismissal of charges by a magistrate in the Local Court. The dismissal followed the magistrate’s exclusion of all prosecution evidence that the accused resisted and assaulted police officers who were arresting (but not questioning) him because they had not cautioned him that anything he did (or said) may be used in evidence.

2. The decision to exclude the evidence was wrong. The dismissal of the charges must be set aside.

Background

3. Mr Joshua Owen appeared in the Local Court at Mt Druitt on 24 January and 10 March 2017 for a defended hearing of three charges pursuant to s 58 of the Crimes Act 1900 (NSW), namely one of resist police in the execution of duty and two of assault police in the execution of duty.

4. The conduct leading to the three charges occurred after Mr Owen was informed he was under arrest on an outstanding warrant. The warrant for Mr Owen’s arrest had been issued pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) after he had failed to appear in court.

5. It was common ground that police had not cautioned Mr Owen upon his arrest. As a result, the magistrate excluded all of the prosecution evidence of things said and done by Mr Owen following the arrest pursuant to s 138 of the Evidence Act 1995 (NSW). She then found that there was no prima facie case and dismissed all of the charges.

6. On 3 May 2017, the Director took over the prosecution from the Police and instituted appeal proceedings in this Court pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 (NSW). An extension of time within which to institute the appeal was granted by the magistrate.

Grounds of appeal

7. The grounds of appeal are that the magistrate erred in law in:

(i)   “Finding that the execution of an arrest warrant required police to administer a caution to the defendant.

(ii) Finding that sections 139(1) and 138(1)(a) Evidence Act applied, rendering the arrest of the defendant improper in the absence of a caution, and the remainder of the prosecution evidence inadmissible.

(iii) Excluding all the prosecution evidence of the offences, having erroneously applied sections 139(1), 138(1)(a) and 138(3) Evidence Act1995.”

8. The Director seeks orders including that the order of the magistrate dismissing the proceedings be set aside and that the matter be remitted to the Local Court to be dealt with according to law.

Evidence

9. The evidence before the magistrate was to the following effect.

10. On 30 April 2016 Mr Owen and a friend were drinking at the Lone Pine Tavern at Rooty Hill. Mr Owen was injured during an altercation with security staff after his friend was asked to leave. Mr Owen moved away from the Tavern and lay down a little distance away. At some point he vomited on his shirt and trousers. He removed his shirt. It was conceded in the submissions for Mr Owen that he was intoxicated. (The magistrate referred in her judgment to Mr Owen being "heavily intoxicated".)

11. An ambulance was called to the scene to treat Mr Owen but he became agitated and flipped over the stretcher the paramedics had brought to his aid. The police were then called for assistance. This was at about 2.00am. Multiple police officers attended the scene. Five officers gave evidence at the hearing.

12. Police ascertained that Mr Owen was the subject of an outstanding arrest warrant for a failure to appear in court. Senior Constable Kumar informed him that he was under arrest by reason of this warrant. Mr Owen was not cautioned at the time of arrest, nor during the events in respect of which he was subsequently charged.

13. Mr Owen refused to cooperate with Senior Constable Kumar or his partner, Constable Klippert. Accordingly, they decided to effect the arrest by lifting Mr Owen off the ground and carrying him to the police vehicle. The prosecution alleged that Mr Owen resisted arrest and assaulted both officers in the course of their attempts to place him in the vehicle. Ultimately, Mr Owen was handcuffed, placed in the vehicle and then taken to Mt Druitt police station where he was charged with the three offences.

14. The first officer to give evidence, Senior Constable Kumar, gave evidence of having informed Mr Owen that he was under arrest because of an outstanding warrant and that he would be taken to Mt Druitt police station. Mr Owen replied, "I don't give a fuck, you're not touching me". Thereafter, the events which gave rise to the charges occurred.

15. After the officer had given evidence of these events, the prosecutor asked if anything was said by Mr Owen as he was swinging punches at the officers. Mr Owen's solicitor objected on the basis that Mr Owen had not been cautioned. The magistrate allowed the evidence but all the officer could recall was that "he was swearing a lot".

16. The issue of there having been no caution was raised during the cross-examination of four of the five officers. Senior Constable Kumar said that he did not caution Mr Owen because he was being arrested for a warrant and not for any other offences at that stage. He said that he did not intend on asking any questions. Constable Klippert said that he did not caution Mr Owen although he was not asked why. Constable Yealland said he did not caution Mr Owen; he was dealing with the ambulance officers while other police officers dealt with Mr Owen. Constable Cook's evidence was that he did not speak to Mr Owen at all. Constable Reylands was not asked about cautioning.

17. Mr Owen gave evidence. He said that he was not aware of any outstanding warrant. He said that he "started to get riled up when [he] got picked up off the ground" and "started thrashing about". He denied assaulting police officers and said that any resistance to his arrest was attributable to concussion; he was confused and did not know why he was being arrested. He conceded, however, that he could not remember the events of that morning particularly clearly.

Statutory provisions

18. Chapter 3 Part 3.11 of the Evidence Act (ss 135-139) is headed “Discretionary and mandatory exclusions”. Section 138 makes provision for the exclusion of improperly or illegally obtained evidence. Relevantly, it provides:

“138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.” (Emphasis added)

19. Section 139 is concerned with cautioning a person following arrest. It provides, relevantly:

“139   Cautioning of persons

(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:

(a)  the person was under arrest for an offence at the time, and

(b)  the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and

(c)  before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.” (Emphasis added)

Submissions in the Local Court

20. The police prosecutor accepted that Mr Owen had not been cautioned but submitted that s 139 of the Evidence Act did not apply in circumstances where he was being arrested in relation to an outstanding warrant and the prosecution did not rely upon any admission or statement that he made. It was submitted that at the time Mr Owen was arrested police were not investigating an offence; they were simply executing a warrant that had been issued by a court. When asked to clarify whether there was a distinction between arrest on a warrant and arrest on a charge the prosecutor submitted that there was, although he was not aware of any case law on the point.

21. Mr Owen’s solicitor contended that his client should have been immediately cautioned upon arrest and that the court should reconsider the decision to admit all evidence of what he said or did from the time the officers attempted to arrest him. He said that he was relying upon s 139.

22. The magistrate referred to pp 16-17 of the NSW Police Force "Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence)" ("the Code") which provides:

“Cautioning

(Refer to sections 139 and 89A of the Evidence Act 1995)

Before questioning an arrested person, you must caution the person that they do not have to say or do anything but that anything they do say or do may be used in evidence.

Although the requirement to caution an arrested person is enlivened upon questioning, it is good practice to caution a person when they are arrested, whether or not there is to be any questioning.

N.B. In addition to the ordinary caution, the special caution applies when you are questioning a person about a serious indictable offence (that is, an offence punishable by imprisonment for life or for a term of five years or more).” (Emphasis added)

23. The prosecutor responded: “Simply good practice, but I would submit, it doesn’t render the evidence inadmissible”.

Judgment below

24. The magistrate delivered an ex tempore judgment at the conclusion of submissions.

25. She commenced by referring to the objection having been taken to the admissibility of evidence pursuant to s 139 of the Evidence Act. She referred to the submissions made by the prosecutor and summarised the evidence that had been given by the police officers and Mr Owen.

26. She said that the police had an opportunity to caution Mr Owen during the initial conversation when he was told he was under arrest and there was a further opportunity “when he was assisted to the truck and being placed in the truck”.

27. Her Honour then referred to the Code and said:

"[It] deals with the issue of cautioning and it is important that the people are given an opportunity to be made aware that anything they do or say may be used against them in evidence. In relation to this case, certainly it was the conduct of the accused that is being used against him."

28. She noted the prosecutor's submission that Mr Owen was only being arrested for a warrant and that it was the officer's duty to take him into custody but referred to the Code providing for the "best practice in relation to cautioning". After reciting the relevant provision of the Code she continued:

"No doubt this is because it gives the citizen the opportunity to be aware that anything they do or say may be used against them in evidence and it also puts the police in a position, once they have cautioned the person, that anything they in fact do do or say then can be used in evidence. In this case, Mr Owen was not given that opportunity and was not notified that anything he did or said may be used in evidence and it appears that in relation to this case, that he did in fact then conduct himself in a way that led to him being charged."

29. Her Honour concluded that the "evidence was improperly obtained because the caution was not given to the accused".

30. She then turned to a discussion of s 138 and the various matters listed in s 138(3) that must be taken into account in determining for the purposes of sub-s (1) whether "the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". In this regard she made specific reference to, and discussed the matters in, s 138(3)(a)-(e) and (h) but did not mention those in (f) and (g) at all. (An issue has been raised about this by the Director as an alternative to his primary argument but it need not be considered.)

31. After repeating her findings that the police had the opportunity to caution Mr Owen at the time of arrest and when he was at the back of the police caged vehicle, she said that there had been "an oversight as to giving the caution to Mr Owen and certainly citizens have that protection when they are being arrested, that they are given a caution, it is the best practice of the police". (A little earlier she said that not giving a caution was "quite wanton" and "reckless".)

32. She concluded her judgment as follows:

"In these circumstances, taking into account the matters that I have considered, I am of the view that the evidence should not be admitted. I am not of the view that it is more desirable to admit the evidence and that it outweighs the undesirability of admitting the evidence, on the basis that the police had every opportunity to give him the caution and considering the circumstances of the case and the nature of the subject matter of the proceedings. I will exclude the evidence of the statements he made and the acts done, subsequent to his arrest."

33. Her Honour then ruled that there was "no case beyond reasonable doubt … I dismiss the charges".

Submissions for the Director

34. Counsel for the Director submitted that there was no questioning of Mr Owen within the meaning of s 139(1) during which he engaged in the conduct giving rise to the charges. Questioning was not necessary for the purposes of the police executing the arrest warrant.

35. It was submitted that the provisions of the Code could not be relied upon to determine the application of s 139. The very terms of the Code that her Honour referred to set out no more than a "practice" with respect to cautioning at the time of arrest. Her Honour erroneously focussed upon that recommended practice to the exclusion of considering the terms of s 139(1) of the Evidence Act.

36. It was submitted that this error flowed through to her Honour's consideration of the balancing exercise to which s 138(1) refers, and of the factors in s 138(3). It was said to be in this context that she described the absence of a caution as "quite wanton" and the behaviour of the police officers as "reckless". This was consistent with her Honour regarding a caution as something the police were required by law to administer and not simply as a matter of suggested "good practice". In considering the difficulty, if any, of obtaining the evidence without the impropriety or contravention (s 138(3)(h)) she stated that there was no obstacle to giving the caution, without appreciating that the evidence in question was not the product of any questioning in respect of which a caution may be required.

37. It was contended that in circumstances where the acts of the defendant that constituted the charges occurred after his arrest, but not during any questioning, her Honour's determination can only have involved a fundamental misconstruction of the provision.

Submissions for Mr Owen

38. Counsel for Mr Owen accepted that the appeal was as of right as it raised a question of law alone: s 56 of the Crimes (Appeal and Review) Act.

39. It was submitted that s 139 of the Evidence Act did not play a determinative role in the magistrate’s decision; rather, her Honour concluded that there had been an impropriety arising from a failure to apply the Code. Her Honour referred to the prosecutor’s submission that Mr Owen was not being questioned. However, she then referred to the Code applying even when no questioning is to occur. She assessed the conduct of the police after the arrest against the Code and concluded that it fell short of that policy. Her Honour found that this was an impropriety. Accordingly, her Honour turned to a consideration of s 138.

40. It was also submitted that the Director’s submissions erroneously contended that her Honour’s exercise of discretion under s 138 required a conclusion that s 139 applied. The magistrate had not expressed a view one way or the other as to whether s 139 was engaged in this case. If there was any imprecision arising from her Honour’s initial reference to the objection having been taken pursuant to s 139 then some allowance should be made for the judgment having been delivered ex tempore in a busy court.

41. In short, it was submitted that it was open to her Honour to conclude that there had been an impropriety by virtue of non-compliance with the Code and open to her Honour to exclude the evidence pursuant to s 138.

42. If, contrary to those submissions, it was held that the magistrate had made her determination based upon s 139, it was conceded that there was error. The section was not engaged because at the time of the only questioning (as Constable Klippert first approached he asked Mr Owen, "What's happening, what's the matter?") Mr Owen was not "under arrest for an offence" (s 139(1)(a)).

Determination

43. The Director contends that the magistrate erred in finding s 139 applied and that, because of the failure of the police to caution Mr Owen, the police officers’ evidence of things said and done by Mr Owen after arrest was improperly obtained. I accept the submission that her Honour's consideration of the factors in s 138(3) is more consistent with her regarding the giving of a caution as obligatory rather than a suggested "good practice".

44. However, there is some force in the contention by Mr Owen’s counsel that her Honour did not find s 139 applied. Accordingly, she did not proceed on the basis the evidence was “taken to have been obtained improperly” (s 139(1)). Independently of s 139, her Honour found that the failure to comply with the Code rendered the evidence improperly obtained.

43. As may be expected in a judgment delivered ex tempore immediately following the conclusion of oral submissions, there is, with respect, an element of imprecision in her Honour's reasons as to whether she decided the question based upon s 139 or otherwise based upon the Code. She commenced her judgment be referring to the objection as having been made pursuant to s 139 and then read out the terms of s 139(1). But after her review of the evidence she said:

"In relation to the submission that a caution did not need to be given, as he was being arrested on a warrant and he was not being questioned, I note that the NSW Police Force Code of Practice for CRIME … deals with the issue of cautioning … "

46. In the end I cannot be sure which of the two possible bases her Honour made her decision to exclude the evidence upon. In these circumstances it is necessary to determine whether there was error in either approach.

47. There is also a distinct possibility that her Honour elided the two by basing her consideration of the requirement for cautioning in s 139 upon a consideration of the practice referred to in the Code. If that is what occurred, it would be clearly erroneous.

Exclusion of evidence based on the Code

48. Evidence derived from a failure to comply with the Code, unlike a failure to caution pursuant to s 139, is not "taken to have been obtained improperly". To give rise to inadmissibility pursuant to s 138 it would be first necessary to determine that the failure to comply with the Code was itself "improper".

What is "improper"?

49. The Evidence Act does not define what is “improper” and so recourse may be had to the general law: Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at 618 [22]; [2005] NSWCCA 426 (Basten JA).

50. In Ridgeway v The Queen (1995) 184 CLR 19 at 36 [23]; [1995] HCA 66 Mason CJ, Deane and Dawson JJ spoke of conduct by law enforcement officers that was not illegal but improper in terms of it being “quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”.

51. In Robinson v Woolworths Ltd Basten JA contrasted conduct which is “quite inconsistent with the minimum standards” with conduct which merely blurs or contravenes those standards in some minor respect; "it must be 'quite inconsistent with' or 'clearly inconsistent with' those standards”. Further, those “minimum standards” must be assessed “in a particular context”: Robinson v Woolworths Ltd at [23]. In relation to the latter, it appears clear that his Honour was speaking of an assessment being made of the conduct of law enforcement officers in the context in which it occurred.

52. In the present case, the assessment of the minimum standards of conduct involves an inquiry as to what is expected and required of police officers executing an arrest warrant upon a man in a public place who is intoxicated and unco-operative; who is not suspected by police of any criminal offence; and who was not intended to be questioned about such. In that context, was it “quite” or “clearly” inconsistent with such minimum standards that the police would not apply a suggested “good practice” to caution the man?

Failure to comply with the Code

53. The two paragraphs of the relevant section of the Code have been set out earlier (at [22]). The first paragraph clearly relates to s 139 of the Evidence Act. The second paragraph advises that it is “good practice to caution a person when they are arrested, whether or not there is to be any questioning”. It is of significance that it is not expressed in mandatory terms; nor is it expressed as a requirement or an obligatory duty. Accordingly, it could not be said that a failure to caution a person when they are arrested but where there is not intended to be any questioning is a breach of the Code.

54. Why it is good practice to caution a person in such circumstances is not explained. The possible events which may occur following a person’s arrest are infinite. A person may do or say something which could be characterised as an admission. If there has been no caution, arguments may arise as to whether what was said by police amounted to “questioning”. Accordingly, it is understandable that it would be “good practice” to caution an arrested person so as to avoid such arguments.

55. It was not suggested in the evidence, and the magistrate did not find, that the police had any intention of questioning Mr Owen at the place where he was arrested or at the rear of the police caged vehicle. Those were the two places her Honour found that there was an opportunity to caution Mr Owen. It was the failure to adopt the suggested “good practice” that led her Honour to conclude that there had been an impropriety. (It appears that nothing turns on the fact that she mistakenly referred to the suggestion as “best practice”.)

56. What may amount to an impropriety for the purposes of s 138 is an evaluative judgment for the judge or magistrate concerned. However, on no account could it be reasonably held that the failure of the police in this case to caution Mr Owen amounted to conduct that was “quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement” in the circumstances that confronted them, even on the defence version of events.

57. The defence version, according to Mr Owen's evidence and concessions made in submissions, included the following. It was 2.00 in the morning. Mr Owen was intoxicated. He had vomited over himself. He became agitated with ambulance officers who had tried to assist him. He flipped, or pushed, over their stretcher. He said he was really angry at that point and was yelling at them and they were prompted to back away. When the police arrived a short time later Mr Owen was laying on the ground. He agreed that he might have been told he was under arrest. He "started to get riled up when [he] got picked up off the ground". He agreed he "started thrashing about" and trying to break free.

58. Even on the version most favourable to Mr Owen, it is perfectly understandable that compliance with a suggested “good practice” did not occur to the police officers concerned. It was not open to the magistrate to conclude (see above at [28]-[29]) that it was improper for police not to have cautioned Mr Owen that if he subsequently did something that amounted to an offence the police could give evidence about it.

59. If non-compliance with the Code was the basis upon which the magistrate found that there had been an impropriety, then it was erroneous.

60. A further observation should be made, although it was not raised by the parties. All of the discussion about the Code and her Honour's finding that there was an impropriety was in the absence of any of the police officers being asked anything about the Code. No criticism was levelled at any of the officers on the subject.

Assuming non-compliance with the Code was an “impropriety”, was s 138 of the Evidence Act engaged?

61. Even assuming that the magistrate was correct in regarding non-compliance with the suggested “good practice” in the Code as an impropriety, a question remains as to whether s 138 of the Evidence Act was engaged.

62. Section 138 is plain in its terms that it is engaged when there is a link between the obtaining of evidence and either some contravention of an Australian law (“illegality”) or impropriety. The evidence must have been obtained either illegally or improperly, or in consequence of an illegality or impropriety.

63. During the course of oral submissions, counsel for Mr Owen referred to Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151; Director of Public Prosecutions v Coe [2003] NSWSC 363; and Director of Public Prosecutions v AM [2006] NSWSC 348. They were each cases dealing with an issue about the propriety or legality of a person's arrest. In Director of Public Prosecutions v Carr, Smart AJ described the arrest and the consequent offences relating to resisting, assaulting and intimidating police in that case as follows:

"[I]t is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police." (Emphasis added)

64. Differing views, in the context of different factual situations, were expressed by Adams J in Director of Public Prosecutions v Coe and by Hall J in Director of Public Prosecutions v AM as to the asserted impropriety or illegality of arrest and the connection between the such arrest and subsequent offending behaviour.

65. I do not find any useful analogy in these cases that is pertinent to the present case where there was no question of the arrest being unlawful or improper. While it might be said that in some circumstances "the employment of the power of arrest unnecessarily and inappropriately" might provoke "anger" and "an escalation of the situation leading to the person resisting arrest and assaulting the police", it is difficult to see that a similar connection can be made between a lawful arrest with an absence of caution and subsequent offending.

66. The following cases provide a more useful and general understanding of the causal connection required between the asserted illegality or impropriety and the evidence the subject of consideration under s 138.

67. R v Ladocki [2004] NSWCCA 336 was an appeal against conviction for a drug supply offence in which Mason P provided a useful discussion of causation and s 138 (at [44]-[60]). The issue was whether the evidence sought to be excluded was obtained in consequence of an impropriety by a police officer.

68. The prosecution had relied upon the evidence of a registered police informant who purchased heroin from the appellant in three “controlled buys”. A Deputy Commissioner of Police had issued a controlled operation authority under the Law Enforcement (Controlled Operations) Act 1997 (NSW). The informant’s evidence in the trial was supported by police officers and by covert recordings of his conversations with the appellant. The police officer who applied for the authority did not disclose that the informant was a heroin addict. It was contended that the authority had been obtained as a result of an impropriety because there had been a breach of a code of conduct that required an applicant for such an authority to act in good faith and disclose all information that could have a bearing upon how the application would be determined. The trial judge accepted that there had been an impropriety but exercised his discretion pursuant to s 138 to admit the evidence.

69. Mason P (Sully and Sperling JJ agreeing) “strongly doubted” that s 138 was engaged, but held that there was no error in the decision to admit the evidence. His Honour doubted the correctness of the assumptions that had been made: that a breach of the code of conduct invalidated the controlled operation authority and that the prosecution evidence would be inadmissible as a consequence of such invalidity. In short, he seriously doubted that the evidence which was sought to be excluded (that the appellant sold heroin to the informant) was obtained in consequence of the asserted impropriety (the failure to disclose a material fact).

70. R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 provides a simpler illustration of the need for a causative link between the obtaining of the evidence and the illegality or impropriety. At issue was the admissibility of admissions made in a police interview which was conducted after the appellant had been in police custody following arrest for an extended period of time.

71. There were legislative provisions (then in Part 10A of the Crimes Act) allowing for a person arrested by police to be detained without charge pending investigation but only within a certain period of time, with limited facility for the period to be extended. The police made an application to an authorised justice for a “detention warrant” so as to extend the time period. The application was made by telephone and there was a failure to comply with a provision (s 356H(9) of the Crimes Act) that required telephone applications to be followed up by the provision of an affidavit verifying the information relied upon within a day after the application was made. Simpson J (as her Honour then was) said (at [86]:

“In my opinion non-compliance with s356H(9) neither renders a warrant invalid […]; more importantly for present purposes, nor does it attract the provisions of s138 of the Evidence Act. Recourse to the precise words of s138 provides a reminder that that section is concerned with evidence that was obtained improperly or in contravention of an Australian law or as a consequence of such impropriety or contravention. That there was a contravention of s356H(9) is established. What is not established is that any evidence was obtained as a result of, or in consequence of, that contravention. The contravention did not occur until one day after the day on which the detention warrant was issued, the time at which sub-s(9) requires the verification of the application to the authorised justice. It cannot be the case that the appellant’s admissions and incriminating statements were obtained in consequence of a contravention which did not occur until twenty-four hours later. Accordingly, whether or not contravention of sub-s(9) renders the warrant invalid for other purposes, it has no relationship to s138 of the Evidence Act.”

72. In the present case, the evidence the subject of exclusion was the five police officers’ observations of Mr Owen’s resistance to arrest and his striking out at Senior Constable Kumar and Constable Klippert. It is difficult to see how that evidence was obtained in consequence of Mr Owen not being cautioned that anything he said or did could be used in evidence. In other words, it is difficult to see how the observations of Mr Owen’s alleged behaviour could be linked to the failure to caution.

73. An indication that the magistrate misunderstood the causation aspect (by confusing the asserted impropriety with the evidence sought to be excluded) is to be found in her consideration of the factor in s 138(3)(h): "the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law". She said:

"In relation to that, I am not of the view that there was any obstacle to them giving the caution."

74. The learned magistrate did not properly address this issue of causation at all. If she had, it may have become clear that s 138 was not engaged, even if it was open to her to find that there had been improper conduct on the part of the police.

Exclusion of evidence based upon s 139 of the Evidence Act

75. Section 139 is concerned with questioning. The magistrate appears to have accepted that there was no questioning or any intention to question. But if it be the case that she upheld the objection and excluded the evidence because there was an impropriety in failing to comply with s 139, that was also erroneous.

76. The terms of s 139(1) are clearly directed to cautioning before questioning a person who is under arrest for an offence.

77. In R v Naa (2009) 76 NSWLR 271; [2009] NSWSC 851, Howie J was concerned with the admissibility of statements made by a man who was engaged in a stand-off with the police shortly after he had stabbed his former partner. He was standing outside a home where the deceased had lived and he was armed with two knives. He had not been cautioned and it was argued that the admissions were obtained contrary to law.

78. Howie J stated (at [98]):

“The first question is whether the section applies to the situation in which the police were involved. It depends upon whether the police were engaged in ‘questioning’ the accused. The word is not defined in the Act. In general parlance it means ‘asking questions of someone’ or ‘interrogating’. I do not believe that the word means ‘a conversation during which questions are asked’. Clearly to my mind the section was aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information, whether or not at the time of the interrogation the suspect was formally under arrest.”

79. He concluded (at [101]):

“I do not believe that the conversation between officer McCarthy and the accused amounted to ‘questioning’ for the purpose of s 139. The questions asked by McCarthy were completely incidental to what she was trying to achieve: to convince the accused to put down the weapons for the safety of himself and others. She was not seeking information from him. She was seeking to distract him, to mollify him and ultimately to persuade him to disarm. No bystander watching the incident would have considered that the officer was questioning the accused. The section was never intended to apply to a siege situation where the police were involved in negotiation rather than investigation.”

80. R v Naa, of course, was the decision of a single judge of this Court but it was referred to recently in the Court of Criminal Appeal in Severino v R [2017] NSWCCA 80 at [54] and [79]. It was distinguished on the basis of different factual circumstances but there was no apparent disapproval.

81. In R v G [2005] NSWCCA 291 the police were executing a search warrant in relation to a sexual assault and the respondent had been cautioned in conventional terms. Later in the search, police took a photograph of the respondent without advising him of how the photograph would be used or giving him a further caution. The trial judge excluded the photograph on the basis that the police had acted improperly by reason of s 139(1). Grove, Hidden and Bell JJ observed (at [59]) that the respondent’ acquiescence in standing in front of a wall and posing for the photograph was not an act done during questioning by an investigating official for the purposes of s 139. The fact that the detective in question may, at that time, have expressed his wish to interview the respondent did not mean that at the time of the photograph the respondent was in the company of the detective for the purpose of being questioned.

82. In the present case, Mr Owen was not “under arrest for an offence” (s 139(1)(a)). But even if he was, he was not being questioned; he was being picked up and carried to a police caged vehicle in order to take him to a police station in order to be processed in relation to the outstanding arrest warrant. The provisions of s 139 were not engaged. There was thus no impropriety that engaged s 138 on this basis.

83. Even if s 139 was engaged, there was the problem that the evidence of police seeing Mr Owen allegedly resisting and assaulting police officers was not obtained by the impropriety, or in consequence of it. Section 138 would therefore still not be engaged.

Conclusion

84. The magistrate was in error in finding that there was impropriety in the conduct of police on either of the bases upon which the parties suggested her decision was based. Even if there had been such impropriety, s 138 was not engaged as the evidence in question was not obtained by, or in consequence of, an illegality or impropriety.

85. Both parties sought an order for costs if they were successful. However, counsel for Mr Owen indicated at the hearing a desire to be heard in light of reasons that might be given if the appeal were to be upheld. Accordingly, the orders made at this point will be confined to the following.

Orders

1   Appeal allowed.

2   The order made in the Local Court on 10 March 2017 dismissing the proceedings against the defendant in respect of charges of resisting and assault police officers in the execution of their duty is set aside.

3   The matter is remitted to the Local Court to be dealt with according to law.

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Decision last updated: 17 November 2017