Director of Public Prosecutions v Coe

[2003] NSWSC 363

CITATION:	DIRECTOR OF PUBLIC PROSECUTIONS v COE [2003] NSWSC 363 revised - 5/05/2003
HEARING DATE(S):	24 March 2003
JUDGMENT DATE:	1 May 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	The order dismissing the information is quashed. A new hearing will be necessary. In the circumstances, the proceedings should be heard afresh by another magistrate.
CATCHWORDS:	Unlawful detention by constable - subsequent assault - whether evidence of assault admissible - s183 Evidence Act 1995 - meaning of "obtained" - causation - natue of discretion
LEGISLATION CITED:	s109(a), Justices Act 1902 s138, Evidence Act 1995
CASES CITED:	Bunning v Cross (1978) 141 CLR 54 DPP v Carr [2002] 127 A Crim R 151 Haddad & Treglia (2000) A Crim R 312 House v The King (1936) 55 CLR 499 Lobban (2000) 112 A Crim R 357 R v Inwood (1973) 2 All ER 645 R v Ireland (1970) 126 CLR 321 R v Ridgeway (1995) 184 CLR 19; 79 A Crim R 307 Robinett v Police (2000) 78 SASR 85; 116 A Crim R 492
PARTIES :	Director of Public Prosecutions (Plaintiff) Murray Coe (Defendant)
FILE NUMBER(S):	SC 13414/02
COUNSEL:	Mr P I Lakatos (Plaintiff) Mr R J Button with Mr L K Crowley (Defendant)
SOLICITORS:	S E O'Connor (Plaintiff) Sydney Regional Aboriginal Corporation Legal Service (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	P J O'Shane LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

THURSDAY 1 MAY 2003

13414/02

DIRECTOR OF PUBLIC PROSECUTIONS v COE

JUDGMENT

1 HIS HONOUR: The Director of Public Prosecutions appeals pursuant to s109(a) of the Justices Act 1902 from a decision of the Local Court dismissing three charges (assault occasioning actual bodily harm, assaulting a police officer in the execution of his duty occasioning actual bodily harm, and common assault) brought against the defendant. The alleged offences arose from a single incident. The victim of the alleged assaults was Constable Baker, whose evidence about them was excluded on the ground that the evidence was “obtained improperly” and thus in contravention of s138 of the Evidence Act 1995 (the Act). The impropriety in question was the alleged unlawful arrest or attempted unlawful arrest of a third person, Raymond Munro. It followed from the reasoning of the magistrate that no evidence of the assaults was admissible and, hence, the informations must be and were dismissed.

2 The incident occurred in the early hours of 27 January 2002. The following is taken from the evidence of Constable Baker, who was the only witness called on the voir dire that was conducted to determine the admissibility of the evidence of the alleged assaults. Two uniformed police officers, Constable Baker and another, were on duty in the Kings Cross locality. At about 1.05 am, following a call over the police radio, Constable Baker and his offsider started walking south down Darlinghurst Road. At the intersection of Darlinghurst Road and Bayswater Road, Constable Baker saw a group of about five or six males. The defendant was present in this group. The constable heard shouting and arguing coming from the group. He noticed that one of the men (Mr Munro) was injured and bleeding. He approached him and asked what had happened. Mr Munro replied, “It’s nothing to do with you, just fuck off, you dog”. Constable Baker responded, “You’re standing in the middle of the street and you don’t look in a good way with all that blood all over you. How did it happen?” Mr Munro relied, “Just fuck off you fucking dog cunt”. The defendant intervened and said to Constable Baker, “Its all right mate, we’ll look after him”. He also said to Mr Munro, “Don’t worry about it, just walk away”. Constable Baker then said to Mr Munro, “I have to find out what’s happening. You’ve got a nasty cut on your head, do you want the ambos to come and have a look at it?” He replied, screaming in a loud voice and waving his arms around, “Just fuck off you cunt, you dog cunt”. The Constable stepped back and said, “Stop swearing mate, and we’ll sort it out”. Mr Munro moved back a couple of steps. The constable moved a step towards him and said, “Come here, tell me what happened.” Mr Munro (as I understand the evidence) moved back a few steps and the constable followed him. Mr Munro said in a loud but not shouting voice, again waving his arms about, “What’s it to you, you fucking dogs?” The defendant walked between the two men, stood next to Mr Munro, put his arm around him and said something that the constable was unable to hear. Constable Baker then said, “Do you want an ambulance?” Mr Munro shouted, waving his arms towards the constable, “Don’t worry about helping me, you fucking dog” moved towards him and then away three steps. Constable Baker approached Mr Munro and said, “Stop swearing.” Mr Munro was pacing and waving his arms about frantically. Constable Baker reached out “and just managed to touch” Munro’s arm in order, he said, “to calm him down”. Mr Munro then pushed his arm against him, forcing him to take a half step backwards. At this point, the defendant who was metres behind the constable, punched the right side of his head. The constable said that his “vision went black” and that when he “regained reality”, he was lying on the ground. He started to get up, Mr Munro kicked the left side of his head and he fell to the ground, his head striking the pavement. He attempted to get up once more and was about to be kicked in the head again when Mr Munro fell over him onto the roadway. Other police at the scene assisted the constable and, shortly after, the defendant and Mr Munro were arrested. Constable Baker suffered a severe laceration to his head at the back of his right ear, where he had been struck, he said, by the defendant. Six stitches were required to close the wound. It was very painful, he had a headache for a week and could not sleep on his right side for six weeks after the incident.

3 The uncontradicted evidence was that Constable Baker was hit from behind, struck to the ground and kicked whilst he was down. Even on the assumption that the defendant struck the police officer only once, there can be no doubt that this was a serious assault.

4 Constable Baker said that he had not placed Mr Munro under arrest before the assaults. He denied that his saying, “I have to find out what’s happening” was intended to place Mr Munro under some kind of compulsion or could have been taken that way, given the manner in which they were said. Despite the words, “Come here, tell me what happened”, Constable Baker said that he was not detaining Munro and that Munro was free to leave if he wished: he would not have stopped him. Except for the words, “stop swearing”, the Constable said that he spoke to Mr Munro in a soft voice. He said that his tone was such that no reasonable person would have thought he was under compulsion.

5 The question for determination, in essence, is whether it was reasonably open to the Magistrate to exclude the evidence of the defendant’s alleged assault upon application of s138 of the Act.

6 The defendant submitted that the questioning of Mr Munro by Constable Baker amounted to an arrest or an attempted arrest, having regard to the fact that the questions were asked by a uniformed and armed police officer, that words of compulsion or demand were used, that questions were repeated despite the refusal of Mr Munro to answer them, that the constable took steps towards Mr Munro as he walked away, and that he touched Mr Munro. The plaintiff submitted that there was no arrest – nor was there an attempt to make an arrest – arguing that it was evidently reasonable to suspect that someone had committed an unlawful and quite serious assault and, this being so, there could be no doubt that it was Constable Baker’s duty to investigate this suspicion and his statement that he “had to find out what happened” meant no more than this. It was also right for him to attempt to get Mr Munro to accept treatment for his injury, which was potentially very serious. Both parties agreed that there was no lawful basis for an arrest. The learned magistrate held in favour of the defendant, stating that the Constable did make, or attempted to make, an unlawful arrest. Her Worship held that the words of the constable, despite the protests of Mr Munro, together with putting out his hand amounted to detention. She cited the principle that it is sufficient to constitute an arrest if, by words and conduct, the arresting officer makes it plain to the person being arrested that he is no longer a free man (quoting Howie and Johnson, Criminal Practice and Procedure NSW, 1998, Butterworths, at [8-s 352.1], referring to R v Inwood (1973) 2 All ER 645) and concluded, despite his evidence, that at least Constable Baker intended that Mr Munro not leave his presence before offering some sort of explanation for his condition. If the constable had this intention, this would not, of course, have converted his action into an arrest. It is perfectly clear that he did not suspect that Mr Munro had committed any offence: he suspected, quite reasonably, that he was the victim of an offence, and a serious one at that; he obviously thought, again quite reasonably, that Mr Munro needed medical attention. Furthermore, I do not see how any reasonable person could have formed the view that the Constable had “made it plain” that Mr Munro was “no longer a free man”. On the assumption that Mr Munro had walked away, I cannot think that it could seriously be contended that he was escaping lawful arrest. However, this does not conclude the matter in the plaintiff’s favour.

7 Subsection 138 of the Act provides, in part, as follows –

“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.”

8 It is obvious that, so far as the evidence went (coming, as it did, entirely from Constable Baker) the only physical contact initiated by Constable Baker was trivial. The question that the learned magistrate was considering was not whether the act of the defendant in attacking Constable Baker amounted to the use of reasonable force for the purposes of defending Mr Munro from unlawful physical restraint or the threat of unlawful physical restraint or arrest – about which, for obvious reasons, I express no view. Her Worship was considering whether there had been an impropriety within the meaning of subs138(1) of the Act that raised for consideration the question whether there was evidence “obtained” by virtue of that impropriety and, if so, whether it should nevertheless be admitted into evidence. The impropriety alleged by the defendant in this case is that Constable Baker had unlawfully arrested or attempted unlawfully to arrest Mr Munro and that the assaults charged against him (if they occurred) were “obtained” by that improper behaviour of the constable. Although, in the circumstances, it was necessary to determine whether there had been an arrest or attempted arrest (which was conceded to be unlawful, if it occurred), it was also necessary to consider the actual nature and extent of the restriction on Mr Munro’s liberty as well as its cause and the officer’s purpose for so doing in the context of the circumstances in which his actions occurred, having regard to the evaluation enjoined by subs138(1). The process prescribed by the section makes it clear that admission or rejection of the evidence, if it be thus obtained by virtue of the proscribed conduct, is by no means automatic. Quite apart from the question of arrest, if the Constable had detained Munro or attempted to detain him, such a detention or attempt was necessarily improper and comprised a misuse (or even abuse) of his office as a constable of police and possibly illegal as comprising a tort, perhaps assault (if there was a threat of the immediate use of force) or false imprisonment (if there was an actual restraint on liberty whether by force or the threat of force) or battery (if the touching of Munro’s arm was a hostile act). For present purposes, I mean by “detention” any actual physical restraint on Mr Munro’s liberty or any threat of actual physical restraint. In the circumstances here, if there was no detention or attempted detention no impropriety arose. The learned magistrate found that Constable Baker effected or attempted to effect an arrest but I think that she meant thereby to find that he detained or attempted to detain Mr Munro for the purpose of asking him about his injury. It seems to me that this was essentially a finding of fact and is therefore immune from review unless it can be shown that there was no evidence to support it. I cannot see any reasonable ground upon which the constable’s uncontradicted evidence could be disbelieved. The onus was on the defendant to prove the factual basis for invoking s138, yet he chose not to give evidence. There was no basis at all for inferring that the constable intended to arrest Mr Munro. There was no evidence that he suspected that he had committed any offence (and it was not put to him otherwise) although he certainly suspected that Mr Munro had been the victim of a serious assault. As I understand what the learned magistrate said, the objective circumstances, taken with the words of command or compulsion used by the constable, together with his reaching out and touching Mr Munro justified the conclusion that he intended to detain the defendant (against his will) until, as I mentioned above, he explained what had happened. There was certainly an evidentiary basis for concluding that the constable hoped to persuade Mr Munro to tell him what happened and used the language of demand and his position as a police officer in this endeavour. The touch on Mr Munro’s arm obviously did not amount to any detention, although it might have been thought that he intended to hold him. I consider that the only reasonable conclusion on the evidence was that the constable throughout, in a fraught and difficult situation, acted as he believed in the exercise of his duty. Indeed, had he just walked away because he had been insulted, leaving a man with a head injury who was very likely drunk and was certainly acting somewhat irrationally, he would have been justifiably criticised, quite apart from his duty to investigate a suspected serious assault. The presence of other persons, who may themselves (for all he knew) have been involved in the commission of the assault, gave no assurance of Mr Munro’s safety. There was no evidence that Mr Munro had been detained by Constable Baker. However, despite the overwhelming preponderance of the evidence being the other way, I am unable to say that there was no evidence that Constable Baker had attempted to detain Mr Munro until he explained what happened or, at least, until he had attempted to calm him down.

9 Before analysing the actual character of the impropriety or illegality, it is useful to consider the question whether the evidence of the alleged assault by the defendant was “obtained” by Constable Baker’s improper actions. At first blush, the submission of the defendant appears odd, to say the least. It is a strange use of language to say that the evidence of the assault by the defendant was “obtained” by the impropriety merely because the impropriety led to or was the cause of the assault, leaving aside as perhaps more apparent than real the distinction between the commission of the offence on the one hand and the evidence of the commission of that offence on the other. The Oxford English Dictionary, 2nd Edition, gives as the primary meaning of “obtain” –

“To come into the possession or enjoyment of (something) by one's own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.”

10 Uninstructed by authority, I would have thought that this is the sense in which the word is used in subs138(1). It would follow that the alleged assault by the defendant had not been obtained by the actions of the constable.

11 The learned magistrate said –

“It is quite clear on the evidence of the officer himself that it was certainly his touching of Munro which the Court finds as a matter of fact amounted to an unlawful arrest, that is, the act taken in conjunction with the words that were spoken earlier to that particular person, but it was the specific act that then appeared to trigger a violent confrontation between the parties. That evidence as to [the] incident that followed then is not admitted, I think on all the grounds set out in sub s[183](3) and, indeed, having regard to the context as the officer was at pains to emphasise, of the circumstances in which he behaved as he did.”

12 It seems to me that something more than a mere causal link or (to use the learned magistrate’s language in the instant case) “trigger” is necessary before s183 comes into play. In DPP v Carr [2002] 127 A Crim R 151, Smart AJ considered the application of s138 as evidence of the offences of resisting police, assaulting police and intimidating police which were allegedly committed following the defendant’s arrest for using offensive language. The impropriety found was arresting Carr for the latter offence rather that proceeding by way of summons, which was the appropriate course of action. Smart AJ adopted the approach of Bleby J in Robinett v Police (2000) 78 SASR 85; 116 A Crim R 492, where evidence of the offences of threatening to cause harm and using offensive language arising from the defendant’s behaviour at the police station was excluded (by the exercise of a common law discretion), essentially because there had been a failure by the police to provide adequate medical treatment to the defendant who was sprayed with capsicum when he was being conveyed to the police station following his arrest on other public order offences. Bleby J posed the material questions as follows (116 A Crim R at 505) –

“Three questions arise for consideration. The first is whether the conduct is of a type that could give rise to the exercise of the public policy discretion. Second is whether the conduct caused or contributed to the commission of the offence. If the answer is ‘Yes’ to both of those questions, it must then be asked whether it called for the exercise of the discretion to exclude the evidence.”

13 (There appears to me to be a significant difference between the formulation of his Honour’s second question and that which falls to be asked under sub s138(1) of the Act. I return to this matter in due course.) Bleby J held that the behaviour of the police “was not only inappropriate, but…fell into that category of impropriety or unfairness that gives rise to the exercise of the public policy discretion”, commenting (116 A Crim R at 508) –

“It was a neglect which, if allowed to persist, was almost certain, in the circumstances, to give rise to the type of offending which in fact occurred on this occasion…
The conduct [of the police] was not illegal. On the part of the police officers, there was probably not even a conscious apprehension of the impropriety or unfairness. There was nevertheless a conscious failure to act when some ameliorating steps should have been taken.”

14 Bleby J took as his starting point in respect of the test of unlawfulness or impropriety the statement of Barwick CJ in R v Ireland (1970) 126 CLR 321 at 334 that the discretion arises where there is evidence of “the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured”. This passage in the Chief Justice’s judgment concludes with the well-known words: “Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion”. It is relevant to note that the issue in Ireland was whether a trial judge should have excluded evidence of photographs of the accused’s hands that were taken illegally. The matter was then considered in a somewhat similar context in Bunning v Cross (1978) 141 CLR 54, where the question was whether evidence of a breathalyser test which was taken following an unlawful demand by a police officer should be excluded. Stephen and Aickin JJ (with whom Barwick CJ agreed) said (141 CLR at 75) that “the discretionary process called for in Ireland…applies only when the evidence is the product of unfair…or unlawful or improper conduct”, going on to note that, “[I]ts principal area of operation will be in relation to what might loosely be called ‘real evidence’ [as distinct from confessional evidence], such as articles found by search, recordings of conversations, the result of breathalyser tests, fingerprint evidence and so on”. While dealing with this judgment, it might be as well to set out the considerations affecting the exercise of the discretion where ‘real evidence’ is sought to be admitted (at 141 CLR 77-78) –

“These are cases into which unfairness does not enter at all. They are, however, cases in which the considerations referred to in Ireland's Case (1970) 126 CLR 321 may be of the greatest relevance. The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be ‘a less evil that some criminals should escape than that the Government should play an ignoble part’ – per Holmes J. in Olmstead v. United States (1927) 277 US 438, at p 470 (72 Law Ed 944 at p 953). Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.” (Emphasis added.)

15 (I interpolate that the matters italicised above appear to fall for consideration under paras 138(3)(d) and (e).) R v Ridgeway (1995) 184 CLR 19; 79 A Crim R 307 might fairly be seen as carrying this principle one step further. The police considered in that case not only engaged in unlawful conduct to obtain evidence but deliberately procured the commission of the offence for which the accused was subsequently prosecuted. Mason CJ, Deane and Dawson JJ (referring to Ireland) said (184 CLR at 31-32; 78 A Crim R at 314-315) –

“Clearly enough, in a criminal trial there is a distinction between a discretion to exclude particular evidence and a discretion to exclude any evidence at all which tends to establish the accused's guilt of the alleged crime or of an element of it. Nonetheless, the existence of the discretion to exclude evidence procured by unlawful conduct on the part of law enforcement officers provides strong support, by way of analogy, for the recognition of a discretion to exclude evidence of the accused's guilt either of an alleged crime or of an element of it in circumstances where the actual commission of the crime was procured by such unlawful conduct. Indeed, the distinction between the two discretions can, in some circumstances, be of theoretical rather than practical importance. Thus, in a case where a course of unlawful conduct on the part of the police has procured both the commission of the offence and evidence of it, there will be little practical significance in the distinction between an exclusion of that particular evidence on the ground that it was procured by the illegal conduct and the exclusion of all evidence on the ground that the commission of the offence was itself procured by that conduct if the only evidence against the accused is that which was unlawfully procured.

More importantly, the considerations of ‘high public policy’ which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be ‘demeaned by the uncontrolled use of the fruits of illegality in the judicial process’ ( Pollard (1992) 176 CLR 177 at 203; at 412-413) Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission.”

16 If this passage did not make it clear enough that their Honours were referring to the incitement of offences by law enforcement authorities, the matter is put beyond argument by the reference to accessorial liability in the discussion (184 CLR at 36; 78 A Crim R at 318-319) of the possible but irrelevant distinction between unlawful and improper inducement of a criminal offence. The following passage is also important (at 39-40; 321) –

“References in this judgment to an offence being ‘procured’ by illegal conduct on the part of law enforcement officers are intended to refer to two distinct, but possibly overlapping, categories of case. The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence. An example of that category is a case where a person is charged with receipt or possession of stolen property in circumstances where not only the supply, but the actual theft, of the stolen property had been organized by the police for the purpose of obtaining the conviction of the person to whom it is supplied (see, eg, D’Arrigo [1994] 1 Qd R 603; (1991) 58 A Crim R 71) In that category of case, the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. Even in such a case, if the police conduct is disowned by those in higher authority and criminal proceedings have been instituted against the police as well as the accused, it is unlikely that considerations of public policy relating to the integrity of the administration of criminal justice would require the exclusion of evidence either of the accused's offence or of the particular element of it created by the police illegality. If, however, the illegal police conduct would appear to be condoned by those in higher authority and it does not appear that criminal proceedings have been brought against the police, those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised. Indeed, if the courts were prepared to allow curial advantage to be derived from the police illegality in such circumstances, there could be no satisfactory answer to Macrossan CJ's rhetorical question (ibid at 605; at 73) ‘at what point would it ever be appropriate to demur and offer objection?’”

17 The sense of procurement as meaning the intentional bringing about of the accused’s criminal behaviour by illegal or improper conduct by law enforcement officers was not differently expressed in the other judgments of the Court: see, eg Brennan J, 184 CLR at 51; 78 A Crim R at 331; Toohey J at 64; 342; Gaudron J, at 76-77; 352; McHugh J at 85; 359. It appears to me that the cases that I have referred to above (with the possible exception of Robinett) do not provide authority for the view – in a non-confessional case – that a causal link, without more, between improper or unlawful conduct and the discovery or creation of evidence of the crime provides a sufficient basis for the exclusion of evidence where the conduct is not committed for the purpose of acquiring or creating the evidence or inducing or inciting or provoking the offence charged, evidence of which is objected to on public policy grounds.

18 Returning to Robinett, Bleby J cited Lobban (2000) 112 A Crim R 357, per Martin J (with whom Doyle CJ and he agreed) at 367, where his Honour said –

“In my opinion, however, the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. In identifying the rationale for the existence of the discretion, the High Court and other authorities have emphasised the importance of preventing the courts from being ‘demeaned’ by the use of the ‘‘fruits of illegality’ or being used ‘to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf’. The focus is thus upon bringing the administration of criminal justice into disrepute through the use of the courts in this manner. The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct.”

19 If I may say so with respect, this statement of the position is plainly correct. But I would not interpret this passage as doing anything more than restating the principle that the Courts will not allow themselves to be manipulated into condoning crimes or serious improprieties by law enforcement officers or their agents, as is made clear by the concluding sentence. In Lobban, the appellant was charged with offences involving the possession and production of cannabis which was mistakenly destroyed after samples had been analysed by the Forensic Science Centre at the behest of the police, thus preventing the accused from undertaking his own analysis. He sought a stay of the prosecution or exclusion of the certificates of analysis.

20 In the end, Belby J in Robinett was persuaded by the close link between the way in which the defendant had been treated over time and his increasing abuse of the police officers and the relative lack of seriousness of the offences charged that “the public interest in securing a conviction for that type of offence, committed in those circumstances, outweighs what would otherwise be condonation of the impropriety and unfairness, if the evidence were to be admitted” (116 A Crim R at 508). Once it is accepted that the officers had not behaved as they did in order to provoke the commission of the offences charged, it is (with respect) difficult to see how hearing and determining the charges amounted to permitting an “attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct”. Furthermore, the behaviour of the police may have provided the defendant with a defence.

21 After this perhaps over-lengthy detour into the common law, let me return to Carr. Smart AJ said of Robinett that it “provides a telling example of a factual situation which cannot be overlooked [and which any] formulation of principle cannot…leave out of account” (127 A Crim R 165) concluding that there is no significant difference between the position under s138 of the Act and the common law. I do not think, with the greatest respect, that a useful principle of law can be elicited from the particular way in which Belby J applied the balancing test which I have set out at the beginning of the immediately preceding paragraph. It seems to me that the questions posed by Belby J (which are set out above in paragraph 11 above), on the assumption that they summarise the common law (and, with respect, I think they do so far as the collection of evidence is concerned but do not so far as the Ridgeway principle is concerned, for reasons that will be clear shortly) are clearly not the questions, in substance or in form, posed by s138 of the Act.

22 The discussion by the Australian Law Reform Commission in its Interim Report on Evidence (No 26) of the issues sought to be addressed by s138 is less than comprehensive. Certainly there is no hint that the Commission was proposing any significant change in the law as it then stood by requiring, as a condition for the exercise of the s138 discretion, that the evidence be “obtained” by the impropriety. (I interpolate that in the present case, I do not think that there is any relevant difference between the meanings of paras 138(1)(a) and (b) by the use of then words “in consequence of…” in the latter paragraph.) Of course, the ALRC report was completed in 1985, well before Ridgeway and Robinett. It appears very likely that the word “obtained” was used because that fairly expressed the circumstances in Ireland and Bunning v Cross that gave rise to the discretionary ground for exclusion of evidence for reasons of public policy. It may be (if Robinett be right) that the common law has moved beyond s138 but I do not see how that can justify an approach that ignores the plain meaning of “obtained” by interpreting it as no more than “brought about by” let alone (as seems to be the case here) “triggered by”. Having concluded that s138 and the common law did not differ, Smart AJ posed the following question (127 A Crim R at 165) –

“There is a distinction between the commission of further offences by a defendant as a result of improper police conduct which precipitated them and the evidence of them which becomes available to be adduced on the one hand, and evidence improperly obtained as to past offences and unconnected with further offences. Can s138(1) operate to render inadmissible evidence obtained of the commission of further offences following an improper act or omission by the police such as an ill-advised arrest as to an earlier offence and/or the withholding of medical treatment? A number of situations may arise. The person arrested may in a state of anger at his ill-advised arrest commit a serious crime, for example, attempted murder or maliciously inflict grievous bodily harm with intent to do so. In such a case, the evidence of those subsequent acts would be admitted. On the other hand he may commit a relatively minor crime such as a mild assault or resist arrest. Further, he may, if moderately intoxicated, utter threats never intended to be carried out. There is also the example of a reaction at the police omitting to summon necessary medical or other attention.”

23 Smart AJ, having observed that, in Robinett, Bleby J “took a robust approach which was based on the realities of the situation in which the defendant found himself”, proceeded to consider whether the evidence sought to be excluded in the case before him was a consequence of or caused by the arrest, held to be improper because, in the circumstances, a summons would have sufficed. His Honour concluded that the magistrate was entitled to find that the offences charged “stemmed from the ill-advised and unnecessary arrest”, pointing out that his Worship “was dealing with the well-known trilogy of an ill-advised arrest where a summons should have been employed, resist arrest and assault police and, as so often happens, the utterance of coarse threats by a moderately intoxicated man”. His Honour considered that the sequence of events was not unusual and were “closely related and interconnected”. It is, I think important to note (as a matter very relevant in the present case) that his Honour was of the view that “if the offences were moderately serious to serious and disproportionate to an ill-advised arrest, it would not be possible to contend that the evidence of such offences was obtained in consequence of an impropriety” (my emphasis). This was a reference, not to the balancing process prescribed by the concluding words of subs138(1) but to the necessity of establishing a causal link between the impropriety and the offences committed by the defendant. A disproportionate reaction meant that, although the impropriety was the occasion for the offences, it was not the cause, which must then be found in the voluntary acts of the defendant. Applying this reasoning to the present case, the mere fact that the unlawful arrest or attempted unlawful arrest “triggered” what followed, did not dispose of the problem of causation and the failure of the learned magistrate to consider this matter amounted to a fundamental error of law. It is obvious from the facts here that 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, was not caused by it. Accordingly, even if at common law the evidence of the offences may be excluded on proof of improper conduct that caused or gave rise to them, the defendant must also fail.

24 It will be seen from the above discussion that Smart AJ considered that “obtained” was the practical equivalent of “caused” or “stemmed from”. For the reasons that I have given, I am, with the greatest respect, unable to agree with this interpretation. The word “obtained” is in ordinary parlance and should not be unduly or artificially restricted: Haddad & Treglia (2000) A Crim R 312 per Spigelman CJ at [73] but it cannot apply more widely than circumstances which fairly fall within its ambit. Where “real evidence” is indeed obtained as a result of impugned conduct, then the case would, of course, come within the purview of the section, even if the conduct was not undertaken for the purpose of acquiring the evidence. 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 shown than the mere causal link: 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 offences. In some cases, of which Robinett and Carr may be examples, there could be such an expectation that offences will result from the impugned conduct that it will be reasonable to say, as an objective matter, that they were “obtained” by that conduct but these situations will be rare.

25 It follows that I consider that the learned magistrate erred in law in concluding that the offences – or the evidence of them – had been obtained by the improper or unlawful conduct of Constable Baker. However, I should say something about the evaluation prescribed by the resuming words of subs138(1), as informed by the matters specified in subs138(3). This subsection is as follows –

“(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.”

26 The reasons given by the learned magistrate for rejecting the evidence, once there was a determination that the constable’s conduct was unlawful, are set out in the passage quoted above in paragraph 11. It will be seen that her Worship did not articulate any evaluation of the matters specified in either subss183(1) or (3). She referred to the touching by Constable Baker of Mr Munro’s arm as appearing “to trigger a violent confrontation between the parties”. (Of course, there was no violence at all between the parties except in the sense that Constable Baker was brutally assaulted from behind and kicked in the head when he was on the ground.) Her Worship then added –

“That evidence as to the incident that followed then is not admitted, I think on all the grounds set out in subs(3) and, indeed, having regard to the context, as the officer was at pains to emphasise, of the circumstances in which he behaved as he did.”

27 It is submitted that the learned magistrate’s exercise of the discretion reposed in her miscarried, in a way that cannot be precisely demonstrated because of the opacity of her Worship’s reasons, since no proper exercise of that discretion could have resulted in the exclusion of the evidence. It is worth restating, I think, the words of Starke J in House v The King (1936) 55 CLR 499 at 503: “a discretion…[may be] very wide, but it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion”. Let me take in order each of the matters referred to in subs183(3). There can be no doubt that the probative value of the evidence was very high. Indeed, despite suggestions put in cross-examination about whether the laceration could have been caused by Mr Munro as distinct from the defendant, which were emphatically rejected by the constable, no attempt was made to contradict the essential accuracy of his account. Nor can there be any doubt that that the evidence was important. Indeed, as its absence led to dismissal of the information demonstrated, the evidence was vital. The relevant offence was very serious, as was the nature of the subject matter of the proceeding. Violent assaults on police officers who are attempting to perform their duty cannot but be regarded as serious, even if no actual injury is caused. A substantial injury was inflicted on Constable Baker. The impropriety or contravention found against him was slight, it involved no assault, no actual physical restraint and none was threatened: if there was an attempted unlawful arrest, this was true only in the most technical sense. The most that could be said was that the Constable misused his position as a police officer in attempting to obtain information from an injured victim about whether he wanted medical attention and how his injury was caused, where there was every reason to suspect that he had been assaulted, possibly seriously. The situation was difficult and fraught and the constable committed no more than a slight error of judgment. There was no suggestion put to the constable from which it could be inferred that he had intentionally or recklessly flouted the law and the learned magistrate did not (and, in my view, could not) so find. The International Covenant on Civil and Political Rights does not appear to be relevant – certainly it was not put either to the magistrate or to me that it was material. There was no evidence that any proceeding was likely to have been taken against Constable Baker but, on the evidence, no such proceeding could be justified. Paragraph 183(3)(h) is irrelevant. The considerations relevant to the evaluation that is required by the resuming words of subs183(1) are sufficiently set out in the authorities to which I have already made reference above. In House v The King (supra at 505), Dixon, Evatt and McTiernan JJ said –

“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

28 Taking into account the matters specified in subs183(3) and the evaluation required by subs183(1), I consider that the determination of the learned magistrate to the effect that “the desirability of admitting the evidence” does not outweigh “the undesirability of admitting the evidence that…[was] obtained in the way in which the evidence was obtained” is, in the present case, so unreasonable that it bespeaks a significant error of law.

29 Accordingly, the order dismissing the information is quashed. A new hearing will be necessary. In the circumstances, I think that the proceedings should be heard afresh by another magistrate.

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Last Modified: 05/07/2003