Director of Public Prosecutions v AM

[2006] NSWSC 348

Reported Decision: 161 A Crim R 219

New South Wales

Supreme Court

CITATION:	DIRECTOR OF PUBLIC PROSECUTIONS v. AM [2006] NSWSC 348
HEARING DATE(S):	30 November 2005
JUDGMENT DATE :	2 May 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	An order that the defendant be referred to as “AM” pursuant to s.11 of the Children (Criminal Proceedings) Act 1987. An order pursuant to s.59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 that the orders of Mr. J. Coombs, Magistrate, made on 21 July 2005, at the Nowra Children’s Court, dismissing one count of “resist officer” and one count of “assault officer” contrary to s.58 of the Crimes Act 1900 be set aside. An order that the matter be remitted to the Magistrate to be dealt with according to law. No order as to costs.
CATCHWORDS:	Evidence Act 1995 (NSW), s.138(1) - meaning of the terms "improper" and "in consequence of an impropriety" - purpose or intention to commit an impropriety is not essential in all cases - in some circumstances an assessment against an objective standard of behaviour is sufficient and subjective intention is irrelevant - not all inappropriate conduct on the part of a law enforcement officer will necessarily be "improper" within the meaning of that term in s.138(1)(a) - alternatively, conduct involving a relevant failure by a law enforcement officer to comply with statutory obligations may constitute either or both unlawfulness and impropriety for the purposes of a public policy discretion - whether arrest was unnecessary - therefore improper - duty of a judicial officer to give reasons - magistrate erred in law in failing to give reasons for the conclusion fundamental to the application of s.138 to the facts of the case - meaning of the "obtained" in s.138(1) of the Evidence Act 1995 (NSW).
LEGISLATION CITED:	Evidence Act 1995 Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Young Offenders Act 1997 Crimes (Local Courts Appeal and Review) Act 2001
CASES CITED:	DPP v. Carr [2002] NSWSC 194 DPP v. CAD & Ors [2003] NSWSC 196 R v Cornwell (2003) 57 NSWLR 82 Ridgeway v. The Queen (1994-95) 184 CLR 19 R v Ireland (1971-72) 126 CLR 321 Bunning v Cross (1977-78) 141 CLR 54 Wendo v R (1963) 109 CLR 562 R v Byrnes (1995) 183 CLR 501 Angliss Law Services Pty Limited v Carabelas (2005) 79 ALJR 993 Robinson v Woolworths Limited (t/as Woolworths Plus Petrol Werrington) [2005] NSWCA 426 Robinett v Police (2000) 78 SASR 85 Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247 Downes v. DPP [2000] NSWSC 1054 DPP v Coe [2003] NSWSC 363
PARTIES:	DIRECTOR OF PUBLIC PROSECUTIONS v. AM
FILE NUMBER(S):	SC No. 15262 of 2005
COUNSEL:	Plaintiff: D. Howard, SC. Defendant: P. Zahra, SC.
SOLICITORS:	Plaintiff: S. Kavanagh Defendant: South Eastern Aboriginal Legal Service
LOWER COURT JURISDICTION:	Children's Court
LOWER COURT FILE NUMBER(S):	N/A
LOWER COURT JUDICIAL OFFICER :	J. Coombs
LOWER COURT DATE OF DECISION:	07/21/2005
LOWER COURT MEDIUM NEUTRAL CITATION:	N/A

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

TUESDAY 2 MAY 2006

No. 15262 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS v. AM

JUDGMENT

1 HIS HONOUR: The plaintiff is the Director of Public Prosecutions for the State of New South Wales. On 11 November 2005, the plaintiff filed a summons in which the following orders are sought:-

“1. An order that the defendant be referred to as ‘AM’ (s.11, Children (Criminal Proceedings) Act 1987).
2. An order pursuant to s.59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 that the orders of Mr. J. Coombs, Magistrate, made on 21 July 2005 at the Nowra Children’s Court dismissing one count of ‘resist officer’ and one count of ‘assault officer’ contrary to s.58 of the Crimes Act 1900 be set aside.
3. An order that the matters be remitted to the Magistrate to be dealt with according to law.”

2 The central questions in these proceedings concern the construction and application of the provisions of s.138(1) of the Evidence Act 1995 in relation to the discretion to exclude evidence said to have been improperly obtained or obtained in consequence of an impropriety.

3 On 21 July 2005, the Children’s Magistrates Court at Nowra had before it three court attendance notices that had been served on the defendant charging her with the following offences:-

(a) An offence of resist an officer while in the execution of his or her duty: Crimes Act 1900 , s.58.

(b) Use offensive language in/near/within hearing from a public place: Summary Offences Act 1988 , s.4A(1).

(c) Assault officer while in the execution of his or her duty: Crimes Act 1900 , s.58.

4 The defendant pleaded guilty to the charge of offensive language. The magistrate dismissed the other two charges.

5 The transcript reveals that on 21 July 2005, there was an examination on the voir dire of Constable Molyneux of Nowra Police Station who was the informant.

6 The learned magistrate found that the arrest by the complainant of the defendant, a female who was 17½ years of age at the time, was unnecessary and constituted an impropriety within the meaning of s.138(1) of the Evidence Act.

Grounds

7 The three grounds relied upon by the plaintiff in the proceedings are as follows:-

(a) That the magistrate erred in law in holding the arrest of the defendant on 19 December 2004 was an impropriety.

(b) That the Magistrate erred in law in failing to give reasons.

(c) That the Magistrate erred in law in failing to consider s.138(1) and s.138(3) of the Evidence Act 1995 before dismissing the two counts of “resist officer” and “assault officer” .

8 Before considering the issues that fall for determination, I will record the essential facts giving rise to the abovementioned charges.

The facts

9 On 19 December 2004, the defendant was arrested for offensive language. The age of the defendant was unknown to the police officers at the time of the arrest.

10 On that date, the defendant was one of a group of five persons (comprising two 18 year old males, a 20 year old woman and a 50 year old woman) who were asked to move on from the vicinity of a shopping complex by four police called to the shopping complex after a broken window was reported. There was no suggestion that the defendant had broken the window. Two of the police officers departed the scene but as the two remaining police officers (Constables Thomas and Molyneux) were departing the scene in their police car, the group returned and the defendant called out, “Fuck you. Fuck off pigs”.

11 Constable Molyneux stopped the vehicle and Constable Thomas spoke to one of the 18 year old males in the group. The defendant approached the police officers and swore again. This was in the vicinity of Woolworths. Constable Molyneux, in her statement, referred to the fact that, at this point, she could see people coming in and out of Woolworths and, at that time, asked the defendant her name and the defendant replied, “Get fucked. I’m not telling you”. Constable Molyneux then reached for the defendant’s bag as Constable Thomas said, “We need some identification then you can leave”. The defendant responded, “Fuck off. You’re not getting it”.

12 The defendant and another (unspecified and unidentified) member of the group lunged at Constable Molyneux and grabbed the bag. The 50 year old woman in the group said, “Her name is …” (stating only the defendant’s first name). Constable Molyneux turned to the defendant and said, “This is your final warning. You need to move on and stop using offensive language”. The defendant replied, “Get fucked, you pig”. Constable Molyneux then arrested the defendant. Another member of the group intervened, calling out to the defendant to run away and the defendant allegedly ran off. She was subsequently apprehended and allegedly then committed the “assault police” offence.

13 The transcript of the evidence of Constable Molyneux established that she had neither met the defendant before the night in question nor had any dealings previously with her. She did not know her name and did not have knowledge of facts that could identify her. As already mentioned, a woman with the group supplied only the defendant’s first name but no other details. Additionally, the other police officers attending were also unaware of the defendant’s name or details. It was put to Constable Molyneux in cross-examination that the woman who had identified the defendant by her first name had in fact provided details to the police concerning the defendant. Constable Molyneux stated that she did not hear any conversation involving the last mentioned woman in which reference was made to any other identifying information.

14 There were two exhibits tendered in the proceedings before the magistrate. The first was the statement of Constable Molyneux. The second was a statement of the woman to whom I have referred in the previous paragraph, who, however, was not available to give evidence or to be cross-examined on her statement, it being said that she had left the area.

15 The transcript records the submissions made on behalf of the prosecutor and on behalf of the defendant. The learned magistrate then gave his decision in the brief terms as follows (at p.11):-

“HIS HONOUR: I mean the question, you known, I mean, there’s no such thing as preventative arrest yet. No, I think I’ll find that it was unnecessary and therefore an arrest undertaken in those circumstances an impropriety and I’ll dismiss the resist officer and assault officer on the basis of that.”

Statutory provisions

16 The provisions of s.138 of the Evidence Act 1995 are as follows:-

“(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.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:-
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:-

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

Ground 1: Impropriety

17 Mr. D. Howard, SC., on behalf of the plaintiff submitted that there was no impropriety and in that respect relied upon the evidence of Constable Molyneux. It was further submitted on behalf of the plaintiff that the learned magistrate had failed to give any reasons for the finding of impropriety and there was no real indication of the basis upon which the finding had been made.

18 On behalf of the defendant, Mr. Zahra, SC. contended that it was open to the magistrate to find, consistently with the judgment of Smart, AJ. in Director of Public Prosecutions v. Carr [2002] NSWSC 194, that the arrest was “… unnecessary and therefore an arrest undertaken in those circumstances [was] an impropriety” (t.11.15).

19 In the written submissions on behalf of the defendant, the following were relied upon:-

“• The power of arrest was used for a minor offence.
• There was no reason to believe that a summons would not be effective.
• The arrest involved additional punishment involving deprivation of freedom. The primary offence was one that carried a maximum penalty of a fine of $550. This indicates that the offence is at the lowest end of the criminal calendar. The offence is not one where public safety is alleged to be at risk. Arrest for a matter where the maximum penalty is a fine is in a special category. Arrest is the deprivation of liberty. Even if the custody is for merely a matter of hours, the deprivation if liberty is a punishment in itself. The gravest sanction that the criminal justice system can impose is the deprivation of liberty. Courts do not have the power to impose the sanction of deprivation of liberty for the primary offence.
• ‘The consequences of the employment of the power of arrest unnecessarily and inappropriately … [was] anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police’ (adopting the terminology of Smart, AJ. in Carr at [35] referred to above). The escalation of the situation was further compounded by the police officer attempting to undertake an unlawful search of the handbag of the young person.
• The police officer effecting the arrest acted unlawfully in that she did not comply with the mandatory provisions of the Children (Criminal Proceedings) Act (NSW) and the Young Offenders Act 1997 (NSW) requiring the police officer to consider other options short of arrest …”

20 Central to the defendant’s submissions, accordingly, is the proposition that the complainant acted improperly, in that the circumstances of the matter did not call for an arrest. Accordingly, so the submission ran, some means short of arrest should have been employed to ensure that the unidentified person (the defendant) was appropriately dealt with by means of a court attendance notice.

21 In relation to this submission, the fundamental principle and approach is that identified by Barr, J. in Director of Public Prosecutions (NSW) v. CAD & Ors [2003] NSWSC 196, wherein it was stated (at paragraph [7]):-

“The law about the arrest of and the commencement of criminal proceedings against persons, especially children, for minor offences is uncontroversial. Arrest should be reserved for circumstances in which it is clearly necessary: Lake v. Dobson (Supreme Court of NSW, Court of Appeal, unreported 19 December 1980). It is inappropriate to arrest when service of a summons will suffice: Fleet v. District Court [1999] NSWCA 363. It is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, where there is no risk of his departing and where there is no reason to believe that the summons will not be effective: Daemar v. Corporate Affairs Commission (Supreme Court of NSW, Court of Appeal, unreported 4 September 1990); Director of Public Prosecutions v. Carr [2002] NSWSC 194.”

22 In CAD (supra), Barr, J. stated (at paragraph [8]) that these principles apply all the more when any person suspected of having committed an offence is a child. His Honour there observed that although it makes no reference to arrest and does not purport to limit the powers of arrest in a proper case, s.8 of the Children (Criminal Proceedings) Act provides that a criminal prosecution should not be commenced against a child other than by summons or attendance notice.

(a) Meaning of the word “improper”

23 The term “improperly” in s.138 is not defined. In Regina v. Cornwell (2003) 57 NSWLR 82, Howie, J. stated at [17] that he agreed with the view expressed by Smart, AJ. in Carr (supra) that there was little purpose in attempting to define the terms “improperly” or “impropriety”, whilst, however, expressing reservation with Smart, AJ.’s observation that s.138(2) and s.139 of the Act “indicated the word ‘improperly’ and the phrase ‘in consequence of an impropriety’ should not be narrowly construed”.

24 Section 138(2) does, however, make specific provision as to the stated circumstances in which an admission made during or in the course of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly. That subsection does not, as expressly stated in it, otherwise limit s.138(1).

25 In Ridgeway v. The Queen (1994-1995) 184 CLR 19 at 37, Mason, CJ., Deane and Dawson, JJ., in relation to the conduct of police in the investigation of some types of criminal activity that necessarily involved subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence, stated that impropriety will be reached in the case of conduct which is not illegal in cases involving a degree of harassment or manipulation “… which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community”.

26 As Smart, AJ. observed in Carr (supra) at [22], the High Court was not, in Ridgeway, dealing with every set of circumstances that may raise questions of impropriety. His Honour there stated:-

“… their statement was probably not meant to be exhaustive but it does indicate the degree of impropriety required where serious offences are involved. Ridgeway involved a serious drug offence. With minor offences, any impropriety is likely to be of a lesser order with lesser consequences. Nevertheless, it will be important. As the Justices pointed out, the enquiry is whether what was done (or not done) is inconsistent with minimum standards of acceptable police conduct in all the circumstances. The Justices did not attempt to define what ‘improper’ meant.”

27 Accordingly, the High Court’s judgment in Ridgeway (supra) is to be read within the context of the matters with which the Court was there concerned, namely, the existence of the discretion to exclude evidence procured by unlawful or improper conduct on the part of law enforcement officers of the kind to which I have made reference in paragraph [25].

(b) Common law origins of the discretion to exclude evidence - improperly or illegally obtained evidence

28 Senior counsel for each party referred to common law principles which they contended may be used as reference points and as informing the provisions of s.138. I will refer briefly to the two well-known High Court cases in which they were discussed.

29 In Regina v. Ireland (1971-1972) 126 CLR 321, the High Court held that certain photographs taken of the respondent’s hand which were taken to assist a medical practitioner in the formation of an opinion that scratches on the right hand could have been caused by a knife, though relevant and admissible, nonetheless were obtained in circumstances whereby the trial judge had a discretion to reject them because of the manner in which they had been obtained.

30 In that case, Barwick CJ. analysed the conceptual basis for the discretion to exclude and, in doing so, distinguished between facts or things “ascertained or procured” by means of unlawful or unfair acts. In general terms, actions by way of “procuring” evidence will usually involve elements of intention or purpose. Such elements (“intention” or “purpose”) will not necessarily exist where evidence in some cases, by reason of particular circumstances, is simply “ascertained”. This distinction is one discussed below. I will return to it in the context of the provisions of s.138(1). The Chief Justice in Ireland (supra) stated that evidence of facts or things ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. The exercise of the discretion to reject evidence and the competing public requirements which were required to be considered and weighed against each other were there identified (at p.335).

31 In Bunning v. Cross (1977-1978) 141 CLR 54, the evidence in question related to the result of a breathalyzer test administered in contravention of the requirements of the law. The joint judgment of Stephen and Aickin, JJ., included observations or propositions to the effect:-

• The statement of principle in Ireland’s case applies when the evidence is the product of unfair or unlawful conduct on the part of the authorities or as Dixon, CJ. expressed it in Wendo v. Regina (1963) 109 CLR 562, “unlawful or improper conduct” .

• The main area of operation of the principle will be in relation to what might loosely be called “real evidence” , such as “articles found by search, recordings of conversations, the results of breathalyzer tests, fingerprint evidence and so on” (at p.75).

• Relevant conduct may vary from overt defiance of the legislature or calculated disregard of the common law, on the one hand, to isolated and merely accidental non-compliance with statutory safeguards , on the other. In general, one may expect cases involving conduct of the former type to attract the discretion to exclude, whilst in cases involving such accidental non-compliance, it may be quite inappropriate to treat such conduct as a basis leading to the inadmissibility of the resultant evidence.

32 In Ridgeway (supra), it was observed that what has become known as the Bunning v. Cross discretion, seeks to ensure that those concerned with the enforcement of the law observe the law in the manner in which they secure evidence: Ridgeway (supra) per Toohey, J. at 56. It may also be said to apply to securing adherence to at least minimum standards applicable to law enforcement officers.

(c) The s.138 provisions relating to impropriety

33 In accordance with the provisions of s.142 of the Evidence Act, on a voir dire, the standard of proof upon findings of fact on the question of impropriety is on the balance of probabilities. The balancing test under s.138(3) of the Evidence Act is shifted to the prosecution. The question is whether 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.

34 In the present proceedings, Mr. Zahra, SC. on behalf of the defendant, in supporting the magistrate’s finding as to impropriety, relied upon the provisions of s.8 of the Children (Criminal Proceedings) Act 1987, in particular, s.8(1) whereby it is stated that criminal proceedings should not be commenced against a child otherwise than by way of a court attendance notice. He also relied upon the provisions of ss.7 and 15 of the Young Offenders Act 1997. Section 7 states the principles that are to guide the operation of that Act and persons exercising functions under the Act. The principles in (a) and (c) of that section are in the following terms:-

“(a) The principle that the least restrictive form of sanction is to be applied against a person who is alleged to have committed an offence, having regard to matters required to be considered under this Act.”

…

“(c) The principle that criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter.”

35 The submission was that Parliament’s intention as evidenced by s.8 of the Children (Criminal Proceedings) Act and the abovementioned provisions of the Young Offenders Act was thwarted by police in the present case. It was submitted that these statutes do more than “discourage the use of arrest” and as a matter of law provide “a mandatory statutory regime”.

36 Reliance was also placed upon the apparent failure to consider the Police Commissioner’s standing instructions with respect to the power of arrest in support of the submission that, having regard to such failure, the matters referred to in [34] along with the relevant factual circumstances, meant that it was open to the learned Magistrate to find that the conduct of the police officer in proceeding to arrest the defendant amounted to an impropriety.

37 In Cornwell (supra), Howie, J. made a number of observations on the operation of s.138(1) including the following:-

• The court in considering its provisions should determine whether the section is engaged, having regard to the particular facts and circumstances before it, but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety, and the outcome of such a finding.

• Not every defect, inadequacy or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect.

• On the other hand, the terms of s.138(3)(e), which subsection requires the court to take into account whether the “impropriety or contravention was deliberate or reckless” , make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power (at [20]).

38 The test for determining whether evidence has been “improperly” obtained is, accordingly, not necessarily dependent upon establishing in every case a state of mind indicative of “intentional” conduct or a consciousness of impropriety.

39 The position in this respect is not dissimilar to the meaning of “impropriety” in relation to directors and other officers of corporations under certain corporations law provisions. In resolving the question as to whether an element of intention was necessary to establish improper use of position by directors and other officers of corporations within the meaning of s.229(4) of the then Companies (South Australia) Code, Brennan, Deane, Toohey and Gaudron, JJ. stated that the test was objective (Regina v. Byrnes (1995) 183 CLR 501 at 514-515):-

“Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case . When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender’s knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.” (emphasis added)

40 Whilst intention or purpose are not then in all cases essential to establish improper use of position in circumstances such as those that arose for consideration in Byrnes, it may, nonetheless, be relevant in assessing impropriety: see Angliss Law Services Pty. Limited v. Carabelas (2005) 79 ALJR 993 at 1006 per Gummow & Hayne, JJ. Similarly, in determining whether evidence has been improperly obtained or was obtained in consequence of an impropriety within the meaning of s.138(1)(a) and (b), the intention or purpose of a law enforcement officer clearly may be relevant in determining whether those provisions are engaged or have application in the circumstances of a particular case.

41 In determining whether evidence was obtained improperly within the meaning of s138(1)(a) and (b), the determination will often involve reference to particular standards that apply to the investigative procedures of law enforcement officers: see Robinson v. Woolworths Limited (t/as Woolworths Plus Petrol Werrington) [2005] NSWCCA 426 at [37] per Basten, JA. See similarly Ridgeway (supra) at 36 per Mason, CJ., Deane and Dawson, JJ. in relation to improper conduct conducive to the commission of a criminal offence in contravention of minimum standards expected and required of those entrusted with powers of law enforcement as discussed in [25] and [26] above.

42 In determining whether law enforcement officers in obtaining information have acted improperly for the purposes of s.138, it will often be necessary to identify the content of relevant or applicable standards of conduct. These may be informed by particular legislative provisions or administrative guidelines or instructions or codes of practice issued by the Commissioner of Police given to and which operate with respect to the actions or conduct of law enforcement officers. This again is not dissimilar to the issue considered in Byrnes (supra) and more recently in Angliss Law Services Pty. Limited v. Carabelas (supra) at 993 wherein, in the latter case, Gummow and Hayne, JJ. stated at 1007:-

“… the question in each case is what content is to be given to the standards of conduct that would be expected of the officer, having regard to the position occupied by the officer in the company and the circumstances surrounding the impugned conduct (ie., the commercial context).”

43 In Robinson (supra), Basten, JA., in relation to dicta his Honour quoted from Ridgeway (supra) at 37, stated:-

“In this last passage, it is implicit that the minimum standards of acceptable conduct must be understood to depend upon the circumstances of the case. It seems inevitable that factors which may become relevant to the exercise of the discretion to admit such evidence are also relevant to the anterior question of whether there was impropriety, triggering the exclusionary rule. It should also be noted that the passage is concerned with ‘criminal activity’, not summary offences, and hypothesizes a ‘suspect’”.

44 Additionally, Basten, JA. in that case stated (at [23]):-

“It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards. Thirdly, the concepts of ‘harassment’ and ‘manipulation’ suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced.”

45 As Howie, J. stated in Cornwell (supra) at 87, an imperfection or defect in procedures utilised by law enforcement officers will not necessarily equate to impropriety within the meaning of s.138 of the Evidence Act. Similarly, in my opinion, not all inappropriate conduct of a law enforcement officer will necessarily be improper with the meaning of that term in s.138(1)(a).

46 In Robinson v. Woolworths Limited (supra), Basten, JA. at [36] stated:-

“… in circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety.”

47 On the other hand, conduct involving a relevant failure by a law enforcement officer to comply with statutory obligations may constitute unlawfulness or impropriety or both for the purposes of the public policy discretion to exclude evidence: Robinett v. Police (2000) 78 SASR 85 at 95 per Belby, J.

Was the arrest “improper” in this case?

48 In determining whether the arrest was “improper”, the relevant facts and circumstances include:-

• The fact that Constable Molyneux did not know the identity of the defendant.

• The fact that Constable Molyneux did not know the place of residence of the defendant or possess any other identifying information.

• The fact that the defendant refused, when requested, to divulge information as to her identity.

• The defendant’s persistence in offending conduct in a public place (offensive language) directed at police including, in particular, the arresting officer.

• The absence of any evidence that Constable Molyneux knew that the defendant was a minor at the time of the arrest.

• The fact that the situation up to the point of arrest was a reasonably dynamic one.

49 It has been submitted on behalf of the defendant that there are other circumstances of a countervailing nature. These have been referred to in paragraph [19]. The question as to whether the arrest was unnecessary and therefore “improper” is one to be answered with due regard to the general principle that an arrest of a young person is to be avoided wherever possible and instead a court attendance notice be utilised for bringing an alleged offender before a court. Additionally, where the alleged offence or offences is/are of a minor nature, that is a matter central to the determination as to whether an arrest of an alleged offender is proper or not.

50 In the present case, the issue as to whether further questioning, in particular, of the older female who was present with the group, would have been productive in ascertaining the identity of the defendant is not entirely clear. It is possible that further inquiry may have produced sufficient information as to identity. However, the limited evidence before the magistrate, does not, in my opinion, establish that that was more likely than not.

51 The fact that the arrest was improper in Carr (supra) was a conclusion arrived at on facts that are materially different to those in the present case. There was no question in Carr as to the identity or the usual place of residence of the defendant. The arresting police officer knew both the offender’s identity and his residence and he was also aware that it was open to him to proceed by way of summons or a field court attendance notice. Smart, AJ. held that the initial decision to arrest in Carr was borne of expediency ([36]). The findings on these matters as made by the magistrate were open and well supported by the evidence.

52 In the present matter, the learned magistrate found that the arrest was “unnecessary” without any elaboration as to the reason(s) or basis for that conclusion. Nonetheless, the magistrate proceeded to express the opinion that, on the basis of that conclusion, “an impropriety”, within s.138(1)(b) of the Evidence Act had been established.

53 The evidence in the present case raised a number of points of distinction to Carr’s case. Apart from the issue of identity, the defendant engaged in a series of offending acts. According to Constable Molyneux, the defendant made offensive statements on four separate occasions, namely, “Fuck you pigs”, “Fuck you, fuck off dogs”, “Get fucked, I’m not telling you” (the latter in response to the question “What’s your name?”) and “Get fucked you pig”. A final warning had been given by Constable Molyneux to the defendant to move on and stop using offensive language prior to the last mentioned use of offensive language by her.

54 Constable Molyneux in her statement (paragraph [12]) alleged that after the defendant started walking away, the defendant turned towards her “using two open hands continuously lashed out at me. I could not grab hold of her arms. Constable Thomas then came over and assisted me …”. This was the basis of the assault officer charge.

55 In the defendant’s submissions, it was observed that Constable Molyneux’s actions in grabbing hold of the defendant’s handbag was an unlawful act. At the time of doing so, Constable Thomas is alleged to have said, “we just need some identification and then you can leave”. The defendant is alleged to have resisted, stating “fuck off, you’re not getting it”. The defendant and another one of the group is then said to have lunged at Constable Molyneux and grabbed the bag. On Constable Molyneux’s version of events, it was after this episode that she issued a final warning to the defendant upon which the defendant turned to her and made the fourth offensive statement as recorded above. It was when Constable Molyneux placed her hand on the defendant’s left arm and stated that she was under arrest that another of the group came between Constable Thomas and Constable Molyneux and told the defendant to run. It was then that the defendant is said to have run up the steps towards, Morrison’s Arcade.

56 In the present case, after the multiple statements by the defendant containing offensive language were made, there is no clear evidence of an escalation in physical violence, although it may be said that Constable Molyneux’s unlawful action in taking hold of the handbag exacerbated events. However, on the evidence before the magistrate, the circumstances that may be said to have led to the defendant’s arrest (unlike in Carr) was the combination of:-

• the continuing conduct of the defendant consisting of her repeated offensive statements;

• the defendant’s refusal to desist from such conduct following the warning given to her;

• the defendant’s refusal and lack of co-operation in identifying herself to the police officer;

• the dynamic nature of the events surrounding the defendant’s conduct as it progressed;

• the defendant’s reaction to what was indicated to be a final warning to move on and stop using offensive language by making the further statement to Constable Molyneux “Get fucked you pig” .

57 In these circumstances, the question becomes whether the alleged offences following the arrest and the evidence concerning them can be said to have stemmed from an ill-advised and unnecessary arrest or whether it can be said to 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.

58 On the facts and in the circumstances in CAD (supra), Barr, J. held that the magistrate’s finding that the arrest was improper was not open on the evidence. The particular issues of fact that arose in that case concerning the alleged unlawfulness or impropriety of the arrest of the unidentified person in that case included his probable age, the complainant’s appreciation of his age at the time of arrest and the facts as to precisely what happened before and at the time of arrest. The defendant had commenced to walk away from the police officer as he was approached. The officer did not ask his name or address but intended to do so at the police station. The magistrate had held that the officer should have taken steps to ascertain the identity of the youth and then consider, if satisfied as to his identity, whether to proceed by way of summons.

59 Barr, J. observed that the relevant time to consider the question of justification was the time of arrest. He also observed that an unjustified decision to arrest may become justified by subsequent events. Whilst the officer could have walked after the person in question and asked him his name and particulars, Barr, J. held that his actions had to be judged according to the way things must have appeared to him at the time. In view of the response that the officer received from the unidentified person after arrest, Barr, J. stated, “… it seems unlikely that such a request would have produced any co-operative reply”. The complainant, he held, found himself in a difficult position in circumstances that were dynamic and where he was alone and out of uniform. Whilst it was correct to say that he might have asked the unidentified person his name and address, and that it would have been desirable to do so, “… that seems to me a long way from saying that not to do so but arrest the person was improper. There was a risk of flight that was not going to be obviated by any mobile telephone call to the police station. If the unidentified person got away, that would have been the end of the matter”.

60 Barr, J. concluded that, in all the circumstances, he did not consider that a finding of impropriety was open.

61 On the facts and in the circumstances of the present matter, notwithstanding that the offence to which the defendant pleaded guilty was at the lower end of the criminal scale, I do not consider that the arrest was improper within the meaning of s.138(1). The factual circumstances indicate that the complainant was faced with a defiant juvenile who persisted in a course of conduct, notwithstanding that initially police had allowed the group, including the defendant, to move on, and subsequently issued a warning to the defendant, which was ignored. The request made to the defendant to identify herself was met by a further offensive statement by way of adamant refusal. As circumstances unfolded up to the point of arrest and as demonstrated by the defendant’s subsequent actions in running away, there was present a risk of flight as in the case of CAD (supra). I do not consider that the statement of the female witness tendered before the magistrate established to the requisite degree of clarity that information of a relevant identifying nature had in fact been provided to police, or, in particular, drawn to Constable Molyneux’s attention before the arrest. Given that that witness was not called to give evidence, the magistrate, in my opinion, was required to accept the otherwise uncontradicted evidence of Constable Molyneux. In the circumstances leading to the arrest, I do not consider that the failure of the police officer to embark upon an inquiry as to the defendant’s age in itself establishes impropriety.

62 I have concluded that, notwithstanding the very able submissions made by Mr. Zahra, SC., on behalf of the defendant, that the finding of impropriety was not open to the magistrate in relation to the arrest.

Ground 2

63 Whilst I accept that a busy magistrate is, generally speaking, not required to give a highly detailed decision, there is, however, consistent with authority, an obligation to identify the basis for a decision made, especially so, in a case such as the present, where an evaluation of all relevant factual matters was essential.

64 The learned magistrate provided no indication as to the basis for the conclusion that the arrest was “unnecessary”. The submissions for the defendant emphasised that the segment of transcript containing the decision should be read in the context of the arguments recorded in the transcript which preceded the decision.

65 Whilst the submissions do reveal the competing contentions, and thus the nature of the issues which fell for decision, it remained an essential requirement for the magistrate to at least identify the basis for the conclusion that the arrest was unnecessary.

66 Although certain of the factual circumstances have a seeming resemblance to certain facts that arose in Carr’s case, a closer analysis indicates, in my view, in the respects earlier discussed, that there were essential differences of fact between that case and the present proceedings.

67 There is a duty in a judicial officer to give reasons for a decision: Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247 at 278. There, McHugh, JA. stated that the duty rests on a wider basis, namely, its foundation is the principle that justice must not only be done but must be seen to be done. To give effect to the assumption of parties who submit a dispute to a tribunal for adjudication, McHugh, JA. there stated “… a judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles …” (at p.278). See also Downes v. Director of Public Prosecutions [2000] NSWSC 1054 per Studdert, J. at [17].

68 The exercise of the discretion to exclude evidence by virtue of s.138(1) involves a balancing exercise and requires relevant matters, including in particular, those set out in s.138(3) to be taken into account in order that there be a proper exercise of the discretion under the section. In determining the issues, the magistrate was required to balance the desirability and the undesirability of admitting the evidence and, in that respect, would be required, inter alia, to give consideration to matters such as the importance of the evidence in the proceeding (s.138(3)(b)) and the gravity of the impropriety or contravention (s.138(3)(d)) amongst other factors. These were not referred to in the decision made by the Magistrate. By reason of the failure referred to in paragraph [65] and in this paragraph, I believe that there was error in the purported application of s.138 to the facts of the case.

69 Accordingly, I have concluded that the learned magistrate did err in law in failing to give reasons for the conclusion that was fundamental to the application of s.138 to facts of the case.

Ground 3: Failure to consider s.138(1) and (3)

The meaning of “obtained” in s.138

70 The conclusions which I have reached and expressed above, in particular, that in relation to Ground 1, strictly renders it unnecessary to express a concluded opinion in relation to Ground 3. However, as considerable emphasis was given to the point arising in respect of this ground by senior counsel for the plaintiff, I consider it appropriate to address the issues arising in relation to it.

71 Mr. Howard, SC., on behalf of the plaintiff, in oral submissions (transcript p.3) submitted that Adams, J. in Director of Public Prosecutions v. Coe [2003] NSWSC 363 disapproved of Carr in at least one respect in relation to subsequent crimes or offending behaviour said to have been obtained “as a result of an impropriety”. Mr. Howard submitted:-

“His Honour essentially was of the view that the word ‘obtained’ could not be stretched beyond its normal parlance to the extent that it had been to encompass fresh crimes that had not been intended to be brought into existence by the police and he distinguished that perhaps from a situation where the police set about to be provocative, to provoke an offence, which is not the situation in the matter before your Honour.”

72 It was submitted that there was involved an important point of law in relation to this aspect by reason of both the frequency with which s.138 is invoked and what was submitted to be a tension between Carr’s case and Coe (supra). Mr. Zahra, SC. characterised the approach of Adams, J. in Coe as the narrow view of the meaning of the word “obtained” in s.138 and that of Smart, AJ. in Carr as the broad approach.

73 The fact that evidence may be obtained either by deliberate action or by inadvertence during the course of an investigation underlies the proposition referred to by Smart, AJ. in Carr’s case and by Howie, J. in Cornwell that an impropriety or contravention referred to in s.138(1) is not necessarily associated with conduct that is wilful or intentional.

74 Evidence, as has been discussed above, may, at least, in relation to the investigation of some types of criminal activity, be obtained by action designed to procure the commission of an offence (through subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence). In other circumstances, evidence of the commission of an offence may, of course, also be obtained or ascertained, but not procured, by or through the actions or omissions of a law enforcement officer. The cases respectively of Coe (supra) and Robinett are examples of such situations where, on the evidence in those cases, it could not be said that the acts or omissions of the police officers in question were intentional or deliberate or procured the commission of further offences.

75 In these proceedings, submissions have been made in relation to the meaning to be attributed to the word “obtained” in the context of s.138 so far as the term relates to evidence that was neither real (tangible items) nor by way of admissions, but which only came into existence, in the aftermath of the impugned conduct (the arrest of the defendant), in the form of the alleged commission of further offences (“resist officer” and “assault officer”) claimed to have stemmed from or to have been causally linked to the alleged impropriety associated with the arrest.

76 The point raised by Adams, J. in Coe at [24] of the judgment in relation to circumstances where the actions of a police officer “triggers” the occurrence of subsequent offences was, in his Honour’s view, that “something more” must be shown than “the mere causal link” to fit “fairly” within the meaning of the word “obtained”, as employed in s.138(1). This is the proposition that the plaintiff has advanced in these proceedings in reliance upon the dicta of Adams, J. in Coe to that effect.

77 Adams, J. in that case observed:-

“Where, however, the evidence in question is that of offences which have been caused by the impugned conduct, it does not seem to me that the evidence will have been ‘obtained’ unless something more is established than the mere causal link”.

78 His Honour continued:-

“… the circumstances must be such as to fit fairly within the meaning of ‘obtained’ almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of the offences.” (emphasis added)

79 It is firstly to be observed that these observations of Adams, J. were obiter, for in paragraph [23] his Honour determined the issue in that case on the basis of an absence of the required causation due to the disproportionate actions of the defendant:-

“… the alleged response of the defendant to the constable’s conduct was so disproportionate and so serious an offence that, even if it was ‘obtained’ by that conduct, it was not caused by it.”

80 With the greatest respect to the view expressed by Adams, J. in Coe (supra) at [24], I am unable to agree with all that is therein stated. Before identifying the area of disagreement, I record the following propositions:-

(a) Where a law enforcement officer intentionally engages in purposive action designed or expected to procure or induce the commission of offences, then plainly evidence of those offences will have been “obtained” in relation to them.

(b) Where a person is subject to an ill-advised or unnecessary arrest but the suspected offender acts in a way which amounts to a disproportionate reaction, an issue may arise, as it did in Coe , as to whether that offence can, as a matter of causation, be said to be a consequence of the arrest.

(c) In other circumstances, however, offences that stem from an ill-advised and unnecessary arrest, may objectively be considered the anticipated or expected outcome and so “obtained” for the purposes of s.138. Carr is such a case.

81 The reservation that I have expressed in the preceding paragraph relates to the observation of Adams, J., that in the context of offences that are said to stem as an unintended consequence from an arrest, that there is a need to establish “conduct that was intended or expected (to a greater or lesser extent) to achieve the commission of offences” as a necessary and separate element in order to satisfy the notion of “obtained” in that context.

82 In the passages quoted from the judgment of Adams, J. set out in paragraphs [77] and [78] above, the proposition is advanced that in cases of the kind referred to in the preceding paragraph, the word “obtained” in s.138(1) requires, in addition to a causal nexus, that the impugned conduct must either be “intended” or “expected” to achieve the commission of offences. However, cases involving an ill-advised or unnecessary arrest which result in unintended consequential offences by definition lack a purposive element. In other words, offences stemming from such an arrest occur without any intention on the part of the arresting officer to provoke such offences. It is, for that reason, that I cannot agree with Adams, J. that in such cases the word “obtained” cannot be satisfied unless the causal nexus is also accompanied by “something more” in the nature of “intended” conduct. I do, however, with respect agree with his Honour’s observation that in order in such cases for evidence to be “obtained”, it may, in some such cases, be necessary that the conduct (the arrest) be of a kind that could be “expected” to give rise to the commission of further offences. The reference to an “expectation” by Adams, J. in Coe may, in some cases, be a material aspect and Robinett and Carr could, as his Honour observed, be seen as examples of that proposition.

83 However, I should add that in relation to the term “obtained” in s.138(1), the reference by Adams, J. to a need in some cases for there to exist circumstances from which the commission of offences may be expected seems to me not to involve or require proof of an element additional or separate to the essential causal relationship. Reference to what might be expected to follow from certain conduct essentially, in my opinion, relates to the likelihood of an event occurring. In other words, whether one thing might be expected to give rise to another is really an aspect that is related to causation – how likely is an arrest, for example, to give rise to particular conduct? This essentially involves questions of predictability and anticipation. I do not, with respect to the observations of Adams, J. on this aspect, see that as a separate or additional matter (the “something more”) distinct and separate from the question of causation. Whether one matter can be said to be expected to give rise to or be the cause of another will often depend upon the intensity of the relationship between them or, as Adams, J. observed, whether there was a “close link” between them as indeed Belby, J. was persuaded existed in Robinett.

84 In applying the provisions of s.138(1) to the circumstances of this case, what must be brought into account is the fact that the alleged offences in question, if they are established as having occurred, arose in circumstances where there is no suggestion that they were in any way “procured” by an intentional or deliberate act of the police officer. In those circumstances, the question would become whether the evidence as to the alleged later offences can be said to have been “obtained” improperly or as “a consequence of” the arrest effected by the police officer?

85 On the analysis of the facts and circumstances in the present matter, I have, as earlier stated, concluded that the arrest was not an ill-advised or unnecessary one. On that basis, there was no impropriety established within the meaning of s.138(1). Accordingly, the question as to whether evidence was “obtained” within the meaning of that provision does not arise.

86 It follows from the conclusions which I have earlier expressed, that the plaintiff is entitled to relief. I accordingly make the following orders:-

(a) An order that the defendant be referred to as “AM” pursuant to s.11 of the Children (Criminal Proceedings) Act 1987 .

(b) An order pursuant to s.59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 that the orders of Mr. J. Coombs, Magistrate, made on 21 July 2005, at the Nowra Children’s Court, dismissing one count of “resist officer” and one count of “assault officer” contrary to s.58 of the Crimes Act 1900 be set aside.

(c) An order that the matter be remitted to the Magistrate to be dealt with according to law.

87 No order as to costs.

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