Director of Public Prosecutions v CAD

[2003] NSWSC 196

CITATION:	DPP v CAD & Ors [2003] NSWSC 196
HEARING DATE(S):	17/03/03
JUDGMENT DATE:	26 March 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Barr J at 1
DECISION:	The following orders and declarations are made -; 1. An order that the first, second and third defendants be referred to by the pseudonyms "CAD", "JAF" and "CMJ" respectively for the purposes of these proceedings.; 2. An order pursuant to s 109(a) Justices Act 1902 quashing the order of Mr R Dive, Magistrate, dismissing the information laid against the first defendant for assault occasioning actual bodily harm (s 59 Crimes Act 1900).; 3. An order pursuant to s 109(a) Justices Act 1902 quashing the order of Mr R Dive, Magistrate, dismissing the information laid against the second defendant for assaulting a police officer in the execution of his duty (s 58 Crimes Act 1900).; 4. An order pursuant to s 109(a) Justices Act 1902 quashing the order of Mr R Dive, Magistrate, dismissing the information laid against the third defendant for assault thereby occasioning actual bodily harm (s 59 Crimes Act 1900).; 5. A declaration that Mr P Mulroney, Magistrate, erred in law in determining that the evidence of Constable Kenneth Johnston as to the assaults alleged to have been committed upon him by each of the defendants had been obtained in consequence of an improper arrest by Constable Johnston.; 6. A declaration that Mr P Mulroney, Magistrate, erred in law as to the construction and application of s 138 Evidence Act in refusing to admit the evidence of Constable Kenneth Johnston as to the assaults alleged to have been committed upon him by each of the defendants.; 7. A declaration that Mr R Dive, Magistrate, erred in law in dismissing the informations.; 8. An order that the proceedings against the first, second and third defendants be remitted to Mr P Mulroney Magistrate to be dealt with according to law.
CATCHWORDS:	Evidence - whether finding open that evidence improperly obtained - - Procedure - objection - voir dire - court's obligation to understand nature of evidence objected to
LEGISLATION CITED:	Children (Criminal Proceedings) Act, s 8 Crimes Act 1900, s 58, s 59 Evidence Act 1995, s 138 Justices Act 1902, s 109
CASES CITED:	Daemar v Corporate Affairs Commission Supreme Court of New South Wales, Court of Appeal, 4 September 1990 unreported Director of Public Prosecutions v Carr [2002] NSWSC 194 Fleet v District Court [1999] NSWCA 363 Lake v Dobson Supreme Court of New South Wales, Court of Appeal, 19 December 1980 unreported
PARTIES :	Director of Public Prosecutions (NSW) - Plaintiff CAD - 1st Defendant JAF - 2nd Defendant CMJ - 3rd Defendant
FILE NUMBER(S):	SC 12608/02
COUNSEL:	Plaintiff: RA Hulme SC 1st, 2nd & 3rd Defendants: JS Stratton
SOLICITORS:	Plaintiff: SE O'Connor 1st & 2nd Defendants: R Wilson 3rd Defendant: D Humphreys

LOWER COURTJURISDICTION:	Children's Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Magistrates P Mulroney and R Dive

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Wednesday, 26 March 2003

12608/02 Director of Public Prosecutions (NSW) v
CAD & Ors
JUDGMENT

1 HIS HONOUR: The plaintiff is the Director of Public Prosecutions for the State of New South Wales. The defendants, whom I shall call CAD, JAF and CMJ, were defendants in the Children’s Court. The magistrate refused to receive certain evidence of the events giving rise to the charges which were then before the Children’s Court. Consequently there was no evidence upon which any of the defendants could be found to have committed any offence charged and, in the absence of the magistrate, a second magistrate dismissed the informations. By its summons the plaintiff seeks a number of orders and declarations the intent of which is to declare that the magistrates were wrong in refusing to receive the evidence and in dismissing the informations and to restore the matter to the Children’s Court to be dealt with according to law.

2 CAD and CMJ were charged with assaulting a police officer, Detective Senior Constable Johnston (“the complainant”), thereby occasioning him actual bodily harm. JAF was charged with assaulting the complainant while he was executing his duty. For reasons which have not been satisfactorily explained there was no evidence before the Children’s Court of any assault by any defendant, though there was evidence of an incident that occurred some little time earlier between the complainant and an unidentified person.

3 It was the defence contention that the evidence relied on by the prosecution to prove the charges against the defendants had been obtained in consequence of the unlawful or improper arrest of the unidentified person and that it ought not therefore to be admitted. S 138 Evidence Act is in the following terms -

138 (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.

4 There were raised for the magistrate three distinct questions, namely whether the conduct of the complainant was unlawful or improper, if so whether the evidence relied on by the prosecution was obtained in consequence of that unlawfulness or impropriety and, if so, whether, striking the balance mandated by s 138, the evidence was inadmissible. The magistrate decided all three questions in favour of the defendants.

5 The plaintiff asserts that the magistrate erred in so answering each of the questions.

The finding that the complainant acted improperly

6 The defence in the Children’s Court asserted that the complainant had acted unlawfully or improperly in that he had arrested a young person for a minor offence in circumstances that did not call for an arrest. It was submitted that some means short of arrest should have been employed to ensure that the unidentified person was appropriately dealt with.

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 New South Wales, Court of Appeal, 19 December 1980 unreported. 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 New South Wales, Court of Appeal, 4 September 1990 unreported; Director of Public Prosecutions v Carr [2002] NSWSC 194.

8 These principles apply all the more when any person suspected of having committed an offence is a child. Although it makes no reference to arrest and does not purport to limit the powers of arrest in a proper case, s 8 Children (Criminal Proceedings) Act provides that a criminal prosecution should not be commenced against a child other than by summons or attendance notice.

9 Consistently with these principles, the Code of Practice issued by the Commissioner of Police requires officers to bear in mind the competing requirement of the rights of individuals to be free and the need to use the extreme action of arrest and enjoins them not to arrest when a summons or a court attendance notice will ensure attendance at court.

10 The complainant gave evidence before the magistrate. He identified his statement, which dealt with his arrest of the unidentified person and the circumstances giving rise to the charges being dealt with. The prosecutor tendered the portion of the statement dealing with the arrest. It ran as follows -

3. Sometime before Midnight 2 November 2001, I was driving by vehicle in a westerly direction along Maroubra Road. At the time, I had my wife Suzanne and a friend Ed MILLER in the car with me. We drove through the lights at the intersection of Maroubra Road and Bunnerong Road. At this point Maroubra Road becomes Heffron Road.
4. As we drove along Heffron Road, I saw a group of youths about 50 yards ahead of me crossing from the southern kerb to the northern kerb. One male youth stood in the middle of my land crouched down slightly and started waving his arms. I slowed down and changed lanes into lane 1. The group came back into lane 1 so I changed back into lane 2. I drove past the youths and looked at them as I drove past.
5. At this time, I saw a male with very short blonde hair, the one that crouched in the lane make a throwing motion and I heard an object strike the car. I stopped the car and reversed back. I got out of the car. At this time, the youths were on the northern footpath walking east. When I was about 10 yards form the youth with the short hair whom I had seen make the throwing motion, I took my wallet from my pocket, exposing my Police identifications. I said: “I’m a Policeman. Come here.” He continued walking. I approached him and said whilst displaying my Police identification in front of him: “You’re under arrest for throwing a missile.” I placed my had on his shoulder.
He said: “Fuck off. I didn’t do anything”
I said: “I saw you throw the rock.”
He said: “How do you know it was me?”
I said: “Because I saw you.”
6. During this, he struggle with me, trying to release my grip on his short.
I said: “We’re going up to the Police Station and I’m going to charge you.” He refused to walk so I started to pull him by the shirt. He continued to resist and I continued to say: “You’re under arrest. Just walk to the Police Station” I again showed him my Police identification and he continued to struggle.

11 A number of issues of fact arose over the alleged unlawfulness or impropriety of the arrest of the unidentified person, including his probable age, the complainant’s appreciation of his age at the time of arrest and precisely what happened before and at the time of arrest.

12 The complainant could not, I think, have used the word “youth” in his statement to denote that the person he arrested was of or under any particular age. In evidence he said that he had no idea how old the person was at the time and that the first time he considered how old the person was was when he was making his statement at the police station. He said that on reflection the person appeared to be about sixteen or seventeen years old. There were these questions and answers -

T19, line 6: Q. But you believed at that time that he was about 16 or 17?
A. Well no I didn’t know how old he was then.
Q. You didn’t know--?
A. On making a, you asked me what my suggestion was, what I thought he was and I’m giving you my opinion now, not what I thought at the time. I’ve had time to reflect and make an assumption on what age he was because I since know the ages of the other people involved, so I’m assuming, and you asked me for my opinion, I’m assuming that he was the same age as they are.

13 He confirmed in evidence what he said in his statement, thus -

Q. So you didn’t just arrest him, physically lay hands on him and then pull your identification out immediately after you’d done that?
A. No, I approached him from the street and I told him, I called out, I told him I was a policeman, I produced my ID, I went over and put my hand on his shoulder and I also showed him the ID again.

14 He confirmed that the person started walking away from him as he approached him. He intended to arrest him and charge him. He did not ask his name or address. He intended to do so at the police station. He was intending when he got out of the car to arrest the person. He was an off-duty policeman, so he had no court attendance notices with him, but would have considered at the police station whether to caution the person, issue a court attendance notice or proceed by way of summons. But they never got there.

15 The implication is that the unidentified person escaped.

16 The complainant agreed that arrest was seen as an extreme action. But, he said, it was not a last resort and every issue had to be dealt with on the merits at the time. He said that people were arrested for minor offences every day. He agreed that he had to consider the alternatives to arrest and said this -

T23, line 49: Q. You didn’t consider those alternatives did you?
A. I wasn’t given the opportunity. Had I, as I said before, had I retrieved him to the police station, made enquiries about his identity, his actions, damage to the vehicle, I may well have, he may well have been cautioned. I have no idea what the outcome may well have been without having to interview him or being given the opportunity to deal with him.
Q. Detective just in terms of that last answer, the question was about your discretion to arrest?
A. Yes sir.
Q. Your answer seemed to me to be more in terms of your, the decision in terms of further disposition of the matter?
A. Yes sir.
Q. So what do you say in terms of your discretion, of your decision as to whether to arrest or not to arrest at the point?
A. At that point I had decided to arrest the person.

17 The magistrate made these findings -

1. The complainant gave truthful evidence, did not intend to behave illegally or improperly, and was motivated by exasperation and annoyance
2. The person arrested was under eighteen years of age.
3. The offence which the complainant believed the person had committed was a minor one for which only a monetary penalty was available.
4. The complainant had a mobile telephone available to him on which he could have contacted local police.

18 The magistrate correctly drew from Director of Public Prosecutions v Carr the principles I have summarised. He observed that it was not necessary for there to exist bad faith or abuse of process or power or intentional wrongdoing in order for evidence to be found to be obtained in consequence of an impropriety. That expression, he said, should not be narrowly construed. He observed that it was inappropriate, as Smart AJ had said, for the power of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of his departing and no reason to believe that a summons will not be effective.

19 The magistrate stated his conclusion in these words -

I am satisfied that the behaviour of Det Senior Constable Johnston amounted to impropriety. Before deciding to haul the youth off in the direction of Maroubra Police Station he should have taken steps to ascertain the identity of the youth and then considered, if satisfied as to his identity, whether to proceed by way of summons. It was not necessary in the circumstances to take the youth to the police station for questioning. Once his identity had been established, arrangements could have been made for him to be further interviewed at a later stage.

20 The magistrate went on to compare the facts of the case with those in Director of Public Prosecutions v Carr and continued -

The fact that the victim of the impropriety was a young person makes the impropriety more serious. The additional punishment to which Smart J referred in Carr is greater for a young person. That the Detective did not know the youth creates an obligation to attempt to establish his identity. It does not justify arrest followed by dragging him some 700 m to a police Station. Because Section 138 (1)(b) should not be narrowly construed there is no difference if the person who seeks to have the evidence excluded is not themselves the victim of the impropriety.

21 The magistrate’s reference to additional punishment was to the observation of Smart AJ in Director of Public Prosecutions v Carr that arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear.

22 It was submitted on behalf of the plaintiff that the finding of impropriety appeared to have been based upon the sole consideration that the complainant should have taken steps to ascertain the identity of the unknown person before attempting to take him to the police station, thus enabling alternative forms of action to be taken. It was submitted that the magistrate thereby fell into error because he elided the circumstances obtaining up to the item of arrest and those which happened afterwards.

23 It was submitted that up to the point of arrest the facts were that the unidentified person had committed an offence and was walking away, that he was approached by the complainant who announced that he was a police officer and asked him to “come here” and that the unidentified person continued walking away. It was submitted that if the complainant had not arrested the unidentified person at that point he would have continued walking away. Although the offender was young and the offence minor, circumstances combining to make the circumstances inappropriate, in the ordinary way, for an arrest, the name and address of the offender were not known, there was a risk of his departing and there was, by implication, a reason to believe that a summons would not be effective. The finding that the arrest was improper was therefore not open to the magistrate.

24 It was submitted on behalf of the defendants that it was irrelevant that the unidentified person continued to walk away when called upon to stop because the complainant had made up his mind by the time he got out of the car to make the arrest. It was submitted that there was no evidence that the unidentified person was fleeing at speed. He merely continued to walk away, so there was nothing stopping the complainant from asking him to supply his name and address. The magistrate’s finding was open on the evidence.

25 I do not accept those submissions. Whether or not the complainant had sufficient reason, when he got out of his car, to make an arrest seems to me to be beside the point. The relevant time to consider justification is the time of arrest. An unjustified decision to arrest may become justified by subsequent events.

26 The second submission seems to me almost to counsel perfection and to ignore the nature of the events facing the complainant. Perhaps he could have walked after the unidentified person and asked him his name and particulars, but his actions have to be judged according to the way things must have appeared to him at the time. In view of the response he did get from the unidentified person after arrest it seems unlikely that such a request would have produced any co-operative reply.

27 The complainant found himself in a difficult position. The circumstances were dynamic. He was alone and out of uniform. He was not entitled to call on his adult companions to assist him as a police officer. He did not have the authority of a uniform. It is correct to say that he might have asked the unidentified person his name and address and I think it desirable that he should have done so but that seems to me to be a long way from saying that not to do so but arrest the person was improper. There was a risk of flight which 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.

28 In all the circumstances I do not think that a finding of impropriety was open. The plaintiff succeeds on this ground.

29 My conclusion makes it unnecessary to consider whether the magistrate was correct in answering the second question in favour of the defence, but I should make some observations about the way the magistrate went about applying the test mandated by s 138.

30 At the commencement of the hearing there was this exchange between Mr Wilson, who appeared for JAF, and the magistrate -

… the way that I would be seeking to run my case in relation to the matter and Mr Franklin (who appeared for CAD) joins with me in the application. We would be asking for a voir dire in relation to Lance Carr type issues in relation to the admissibility of the evidence following the – what the victim says was an arrest of another young person. We would be asking to have a voir dire in relation to the admissibility of the evidence obtained in consequence of that, of those actions.
BENCH: Is this concerning this Constable’s evidence?
WILSON: Concerning the victim who is an off duty officer, who is alleged to be acting in the execution of his duty, concerning his actions in relation to the young person who is not charged, alleged to have thrown the rock.
…
FRANKLIN: Your Worship If I could just be heard on that point. Are you proposing to accept his evidence on a preliminary basis, because it would be my argument on the voir dire that his evidence would not be admissible.
BENCH: I will accept the evidence on the basis that it may later be rejected if it is seen as being only in consequence of a process that I would reject on a Carr.

31 The reference to “Lance Carr type issues” was to Director of Public Prosecutions v Carr.

32 The record shows that the arrest of the unidentified person was dealt with in paragraphs 3 to 6 inclusive of the complainant’s statement and the assaults in the remainder. It was explained to the magistrate, who had not seen the statement, that paragraphs 1 to 6 inclusive were on the first two pages and that paragraph 7 began at the foot of the second page. The magistrate said this -

… give me the first two pages and then just fold under the paragraph 7 so I don’t see it.

33 During cross-examination these answers were given in response to questions asked by Mr Wilson -

Q. After you had as you say arrested that young person and were trying to take him to Maroubra Police Station I think you say that a number of other young persons approached you?
A. That’s correct.
Q. And you would say that they were telling you to let that person go?
A. That’s correct.
A. And that appeared to be the concern of those young persons, that you had the other young person and were taking him away?
A. Yes.
Q. And I think you’d say to them, you told them that he’s under arrest and he’s going to the police station?
A. Yes.

34 During submissions Mr Wilson said this -

The evidence of the officer was the other young persons have come as a direct result of the arrest and asking that the other young person be let go, so the situation has in fact been escalated by arrest, not, and in my submission the officer’s safety would have been much better served by asking him to wait until uniformed officers arrived from up the road.

35 Later on the magistrate said this -

Is the evidence that is subsequently obtained, in other words I obviously know that there’s an allegation that assaults occur subsequent to this particular event, why is it that that evidence is obtained in consequence of the impropriety? That’s obviously a question that maybe we need to deal with now because I presume that either it will be suggested that the assaults didn’t occur or, alternatively, and that’s a reasonably straightforward issue, or, alternatively, that if the assaults did occur they were done by way of defence of another person, and I can’t see how the evidence relating to the behaviour of the young people is evidence that occurs in consequence of an impropriety in terms, I mean obviously it’s an act that occurred as a result of the detective’s decision to arrest, but is it a consequence of the impropriety because as I understand the purpose of the use of the words “in consequence” in 138, you can have a situation where evidence might be improperly obtained which then leads to other forms of enquiry.

36 Mr Wilson’s response included the following -

… in my submission if your friend is being arrested in front of you improperly it’s just as much of an impropriety, or just as much in consequence as if you yourself are being arrested improperly and your Worship the evidence of the officer was that the actions of these youths who were approached was as a direct result of the arrest and they were telling him to let the person go and their principal concern was to get their friend to be let go.

37 In applying the test under s 138 the magistrate was required in balancing the desirability and the undesirability of admitting the evidence to take into account the matters mandated in subs (3). The magistrate knew that the prosecution was asserting that it was the complainant who had been assaulted. The magistrate could also infer from the evidence adduced by Mr Wilson and from the submission he made without objection that the defendants were or were among the other young persons who asked the complainant to let the unidentified person go. But he did not know exactly what the defendants were said to have done to the complainant.

38 The two offences with which the defendants were charged each attracted a maximum penalty of imprisonment for five years. Offences of those kinds no doubt encompass a wide range of circumstances and criminality ranging from very serious to trivial. The bodily harm contemplated by the charges brought against CAD and CMJ encompassed a range of injuries ranging from minor to serious injury short of grievous bodily harm.

39 Because he did not receive the complainant’s evidence about the alleged assaults the magistrate had no idea about their level of seriousness. He did not know, for example, exactly what each defendant allegedly did, what if anything was said, how long the assaults lasted, whether (as seems likely) whatever was done was done in company, what bodily harm resulted, what medical treatment, if any, was needed, how long the harm subsisted. No doubt other questions of fact would also need to be answered in order to assess the individual criminality of each defendant.

40 The result was that it was impossible for the magistrate to apply the test under s 138. He had no idea of the nature in each defendant’s case of the relevant offence or the nature of the subject matter of the proceeding: subs (3)(c). That explains why, in purporting to apply the test, the magistrate said no more than this -

The evidence that is sought to be excluded is clearly essential to the prosecution of the defendants before me. Nevertheless, I am satisfied that the desirability of admitting that evidence is not outweighed by the undesirability of admitting that evidence. The Detective’s response was out of all proportion to the offence that he identified or even the possible alternative offence of malicious damage.

41 Counsel for the defendants submitted in this Court that it was not for the magistrate to dictate to the prosecutor what material he should lead on the voir dire and could not be criticised for not taking into account material which the prosecution chose not to put before him.

42 This submission must be rejected. When a court is required to decide on an objection to the admissibility of evidence it is necessary for the court to inform itself what the evidence is. The magistrate was bound to acquaint himself with the substance of the evidence before he could decide whether or not to admit it. In fact he initially told Mr Franklin that that was what he would do, but later changed his mind.

43 It is often convenient for a court to acquaint itself in an informal way, as by the tender of a statement, with the nature of evidence objected to. That is what should have happened in the present case, but by eschewing any reference to the complainant’s account of the assaults the magistrate put it out of his power to know things he had to know in order to perform his proper function.

44 I make the following orders and declarations -

1. An order that the first, second and third defendants be referred to by the pseudonyms “CAD”, “JAF” and “CMJ” respectively for the purposes of these proceedings.

2. An order pursuant to s 109(a) Justices Act 1902 quashing the order of Mr R Dive, Magistrate, dismissing the information laid against the first defendant for assault occasioning actual bodily harm (s 59 Crimes Act 1900 ).

3. An order pursuant to s 109(a) Justices Act 1902 quashing the order of Mr R Dive, Magistrate, dismissing the information laid against the second defendant for assaulting a police officer in the execution of his duty (s 58 Crimes Act 1900 ).

4. An order pursuant to s 109(a) Justices Act 1902 quashing the order of Mr R Dive, Magistrate, dismissing the information laid against the third defendant for assault thereby occasioning actual bodily harm (s 59 Crimes Act 1900 ).

5. A declaration that Mr P Mulroney, Magistrate, erred in law in determining that the evidence of Constable Kenneth Johnston as to the assaults alleged to have been committed upon him by each of the defendants had been obtained in consequence of an improper arrest by Constable Johnston.

6. A declaration that Mr P Mulroney, Magistrate, erred in law as to the construction and application of s 138 Evidence Act in refusing to admit the evidence of Constable Kenneth Johnston as to the assaults alleged to have been committed upon him by each of the defendants.

7. A declaration that Mr R Dive, Magistrate, erred in law in dismissing the informations.

8. An order that the proceedings against the first, second and third defendants be remitted to Mr P Mulroney, Magistrate, to be dealt with according to law.

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Last Modified: 03/27/2003