Jafarigolrokh (aka Goldwin) v The King

[2023] NSWDC 140

District Court

New South Wales

Medium Neutral Citation:

Jafarigolrokh (aka Goldwin) v R [2023] NSWDC 140

Hearing dates:

15 March 2023

Date of orders:

15 March 2023

Decision date:

15 March 2023

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

The appeal will be upheld. The orders of the magistrate are quashed.

Catchwords:

CRIME — Violent offences — Resist/Hinder police officer in execution of duty — Reasonableness of arrest

CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction

CRIME — Appeals — Appeal against conviction — Point not raised below

Legislation Cited:

Law Enforcement (Powers and Responsibilities) Act 2002

Category:

Principal judgment

Parties:

Nastaran Jafarigolrokh (Appellant)
Regina (Crown)

Representation:

Counsel:
P Godkin (Appellant)
R Sharma (Respondent)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Appellant (Direct Access)

File Number(s):

2021/00113298

JUDGMENT

1. HIS HONOUR: The appellant in these proceedings was charged under her Iranian given name, Nastaran Jafarigolrokh, although she is more commonly known since the time that she has been in Australia as Nella Goldwin. Given the time of the afternoon I will be a little more succinct than I might otherwise often be.

2. On 23 April 2021 police officers from the Surry Hills Area Command attended the home of the appellant, who I will refer to as Ms Goldwin, for the specific purpose of arresting her. They were intending to arrest her on the basis that during the course of the evening shift the night before, in the early hours of 23 April 2021 at about 1am, the appellant’s estranged husband, from whom she had been separated since February of 2021 had attended Surry Hills Police Station where he made a statement and lodged a complaint of a verbal threat or intimidatory comments that he alleged had been made to him in a motor vehicle by his estranged wife the night before whilst they were in a motor vehicle.

3. The allegation that he brought was to the effect, without going chapter and verse through it, that she had said a number of things in relation to their separation and the involvement of lawyers regarding the Family Law circumstances which either were pending or had been undertaken, and according to her husband she had said things such as:

“When we were married I loved you so much and I cared about you a lot, now we’re separated I don’t love you, I don’t care about you at all. These things happening now is just the beginning. I’m going to take you down, I’m going to take everything. There’s going to be many more of these things happening to you, many more. I’m going to spend the next two years taking you out.”

4. Those conversations, in due course, were denied, but be that as it may, it is said that the argument which, construing it properly, seems to have been, inter alia, about money, were said to constitute, according to the Police facts.

5. In addition to that verbal exchange, as set out, which bore no threats of physical violence, the complainant, that is the ex‑husband, gave police an account that there had been a toxic relationship since 2016 and there had been what were described as semi‑regular episodes of physical violence, both verbal and mental abuse, from the female appellant towards her husband. He said he had not previously reported these matters. He then gave the detail of an alleged assault which had taken place in the week before Christmas in 2020, some four months earlier, in respect of which he had neither sought medical attention, had any photograph taken, nor reported it to police.

6. Regrettable though it is, the Courts regularly see separated or separating husbands and wives bring allegations against each other of various natures. Sometimes they involve custody of children, sometimes they are true, sometimes they are false. Often they reflect a degree of acrimony that is only eventually going to be resolved in the Family Court.

7. However, the material placed before the police on that night at Surry Hills, while it is to be recognised that the allegation was one of, strictly speaking, domestic violence, were hardly in my view of a kind which would have justified the issuing of a warrant for arrest, nor the immediate, in effect, apprehension and detention of the person against whom the allegations were made.

8. The material ultimately before this Court which includes material which had been tendered in the Local Court on severity after a finding of guilt had been made, and sets out a number of, pertinent facts in understanding the background of the allegations which were brought.

9. The first thing that is to be noted, which the magistrate accepted from the Bar table in the course of determining the substantive offences, was that the appellant was a person of prior good character. She had no criminal convictions other than driving with a low range PCA for which she got a s 10 bond in 2012. Other than that she had no record whatsoever.

10. However, what that material does indicate, and I will paraphrase, is that from 2016 there were ongoing reports of domestic violence, not by the husband but by the wife. She had attended doctors with reports of physical assaults with demonstrated bruising, and various other injuries which she reported, on a consistent basis, had been the result of assaults or violence towards her by her husband during the course of the marriage.

11. Indeed, by the time of the separation in February of 2021 she was regularly in attendance at the domestic violence service management agency called Sightlines where she had a case manager and social worker with whom she was in regular contact regarding domestic violence in respect of which she was the complainant/victim. The history, and it clearly indicates in the exchanges between her and her ex-husband, that there had been allegations leading to Apprehended Violence Orders historically, and indeed there is a clear and irresistible implication in the overall evidence, although the actual record is not before me, that the husband had indeed been convicted of an assault in relation to his wife some years earlier.

12. Included in the conversational background given by the appellant and indeed recounted by her to the domestic violence agency, were assertions by her ex‑husband, true or not, that he had connections in the police including at Surry Hills Police Station. Leaving for one moment completely to one side the fact that this appellant had originally come from Iran where, in the history she had given both to a psychologist and to the domestic violence agencies, the fears in relation to corruption involving the police in that country is something which is notorious in reports, certainly through psychologists, that come before this Court on a not irregular basis, that had the police officer who took the report from the complainant, the appellant’s ex‑husband, made a check of various background material it would have been, as it seems to me, highly likely that it would be clear that this was an acrimonious relationship between two people who were physically separated, and whilst it might have warranted an Apprehended Domestic Violence Order on an interim basis that would require resolution in due course by a magistrate, the proposition, leaving totally to one side the alleged assertions of contacts within Surry Hills Police Station that a constable, in the circumstances that I have outlined, would determine to direct the oncoming shift to go and physically arrest and detain this woman I find frankly astounding.

13. It is to be observed without, and bearing in mind the jurisdiction in which I sit, I do not propose to turn this into a lengthy judicial statement, but it is clear that the provisions of s 99 of LEPRA (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)) set out the circumstances in which an arrest may be made. The Courts, particularly the High Court of Australia and the New South Wales Court of Criminal Appeal, and in the civil proceedings that have come before it, the Court of Appeal, have repeatedly made statements and expressions of principle in relation to the liberty of the subject and the circumstance that arrest is a step of last resort.

14. Police are, of course, entitled and indeed obliged in some circumstances to physically detain people, however the proposition that somebody would physically arrest a woman in her home where she is separated from her husband on the basis of an historical allegation of an assault, some four months earlier, and an assertion of a conversation which might or might not constitute intimidation, I frankly find outrageous.

15. It is true that the learned magistrate did not receive the assistance, either from the prosecutor or from defence counsel who then appeared, not Mr Godkin who is appearing before me today, by virtue of clarifying or pursuing the issues giving rise to the decision to arrest and focusing rather on what was said to be self‑defence as it were, may not have given the magistrate all of the assistance to which the magistrate should have been entitled.

16. However, that being said, the learned magistrate in my respectful opinion was in error in not allowing examination of the complainant regarding the historical background and the motivation for potentially bringing a false allegation, wrong in shutting down completely questions about the husband’s previous conviction, wrong in not allowing cross‑examination regarding text messages which were able to be established between the two parties, and hence confining the hearing to a very narrow debate about the circumstances of the alleged assault and the alleged intimidation.

17. It is appropriate to observe that that hearing ran in conjunction with the resist arrest from the following day because the arrest was a concomitant outcome of the complaint that had been made.

18. As it happened the learned magistrate had some reservations, both about the evidence of the ex‑husband and some aspect of the evidence given by the appellant. That having been said, and notwithstanding the considerable advantage of watching the evidence viva voce as opposed to simply reading a transcript, the learned magistrate came to a conclusion which on my reading of the transcript was the correct decision, that is, she was not satisfied beyond reasonable doubt that the assault was established, nor was she satisfied beyond reasonable doubt of the intimidation which was alleged.

19. Then when one went to the consideration of the arrest, the focus, as I read the remarks of the learned magistrate, was on the issue of whether or not there was, in fact, a resisting or a hindering and little, if any, focus on the appropriateness or decision made to make an arrest in the first place.

20. I must say that my reaction to the video is a different one to the learned magistrate in that the way in which the appellant queried the basis for the arrest was calm and measured. It is put on behalf of the prosecution that the police officer was similarly calm and measured and to some degree there is some force in that submission.

21. However, it is patently clear that the police turned up with very little explanation other than saying, “It’s in relation to a domestic violence allegation” with no particularity, nothing about who had made the allegation. The appellant indicated that she had been through this precise scenario previously and the material before me indicates that there was, at some stage, a complaint historically made by her husband. I infer that she was either arrested or detained in relation to that matter and in due course exonerated at court.

22. The proposition that there would be a replay of that scenario with police officers turning up in the fashion that they did to effect a physical arrest is, as I have already said in my view, something which should not be happening in a civilised society. They knew who she was, they knew she had no criminal history, they should have known the background in relation to the husband. She had been to Kings Cross Police Station where a female police officer had given her advice and her requests, which in my view were reasonable, to contact Kings Cross Police were peremptorily dismissed by the arresting constables who seemed to have nothing more in mind than “you’re under arrest, you’ll do what I say” putting it in those simple blunt terms.

23. It is incumbent upon those who effect arrests to be able to justify their conduct. The proposition that the police officer who took the statement simply directed them and like automatons they went out to arrest a woman at her home in these circumstances is a matter which I will leave for another day for consideration in the sense that whether or not police officers in those circumstances are entitled to effectively rely on what facetiously is described as the Nuremberg defence, would seem to me to be a matter in respect of which a deal more judicial contemplation would be required. I do not require assistance from authority in relation to it.

24. I am not satisfied that this arrest was reasonably necessary for any of the reasons set out in s 99(1)(b).

25. Were I of a different view I would reach the view that the appellant was justified in the resistance to immediately leaving that she exhibited given all of the circumstances and given her history and the background and indeed the history with the New South Wales Police. The desire to seek some further clarification was perfectly reasonable and in my view was quite unreasonable of the police to deny her the opportunity to have some explanation.

26. The appeal will be upheld. The orders of the magistrate are quashed.

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Decision last updated: 08 May 2023