Monte v Director of Public Prosecutions (NSW)

[2015] NSWSC 318

Supreme Court

New South Wales

Medium Neutral Citation:	Monte v Director of Public Prosecutions (NSW) [2015] NSWSC 318
Hearing dates:	10 March 2015
Date of orders:	31 March 2015
Decision date:	31 March 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	The summons is dismissed.
Catchwords:	CRIMINAL LAW – Appeal and Review – Evidence - Where plaintiff charged with stealing from the person following altercation with an off duty police officer – Where off duty police officer then purported to arrest the plaintiff – Proceedings before the Local Court where plaintiff argued that evidence should be excluded pursuant to s. 138 of the Evidence Act 1995 – Where Magistrate admitted the evidence – Whether Magistrate erred in doing so – Whether Magistrate erred in not ordering a permanent stay of proceedings on the grounds of an abuse of process
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 Customs Act 1901 (Cth) Evidence Act 1995 (NSW) Law Enforcement Powers and Responsibilities Act 2002 (NSW)
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472 Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 Coulton v Holcombe [1986] HCA 33;(1986) 162 CLR 1 Director of Public Prosecutions v Coe [2003] NSWSC 363 Director of Public Prosecutions (NSW) v AM [2006] NSWSC 348; (2006) 161 A Crim R 219 DPP v Shirvanan (1988) 44 NSWLR 129 Gommesen v R [2012] NSWCCA 226; (2012) 62 MVR 196
Category:	Principal judgment
Parties:	Liam Monte – Plaintiff
Representation:	Counsel: Mr S Boland - Plaintiff Ms J E Davidson - Defendant Solicitors:
File Number(s):	2014/265476
Publication restriction:	Nil

Judgment

INTRODUCTION

1. On 20 April 2013 the plaintiff was charged with an offence of stealing, contrary to s. 94 of the Crimes Act 1900 (NSW). He entered a plea of not guilty and the matter proceeded to hearing before Magistrate Barnes in the Local Court.

2. At the commencement of the hearing the plaintiff’s solicitor informed the Magistrate that there was an issue concerning whether or not the plaintiff had been lawfully arrested by police prior to being charged. This, he explained, gave rise to the question of whether or not the evidence relied upon by the prosecution to support the charge was obtained in contravention of s. 138 of the Evidence Act 1995 (NSW) (“the EA”) and, if so, whether the evidence should be excluded.

3. A voir dire extending over two hearing days took place before the Magistrate in which evidence was called by both parties. At the conclusion of the voir dire, the Magistrate declined to exclude the prosecution evidence. After hearing further submissions from the parties, the Magistrate dismissed the charge against the plaintiff pursuant to s. 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”).

4. By a summons filed on 9 September 2014 the plaintiff appeals from the Magistrate’s decision pursuant to the provisions of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”). The summons seeks orders that:

1. the appeal be allowed;

2. the decision of the Magistrate be set aside;

3. the charge laid against the plaintiff be stayed or dismissed;

4. the plaintiff’s costs of the appeal be paid by the defendant;

5. the plaintiff’s costs in the proceedings in the court below be paid by the defendant; and

6. such other order or orders as the court thinks fit.

5. At the hearing of the appeal, the prayer for relief in [4](iii) above was abandoned.

6. The plaintiff relies upon four grounds of appeal which are more fully set out below. Each of grounds 2, 3 and 4 raises a question of mixed fact and law and requires leave: CAR Act s. 53. The defendant did not object to leave being granted in respect of each of those grounds.

7. A Court Book prepared jointly by the parties and containing all relevant material was admitted into evidence at the commencement of the hearing of the appeal and marked Exhibit A.

THE PROSECUTION CASE AGAINST THE PLAINTIFF

8. During the evening of 19 April 2013, whilst in the company of his friends Reginald Datta (“Datta”) and Denis Schafer (“Schafer”), Osvaldo Painemilla (“Painemilla”) celebrated his birthday by visiting a number of bars in the central business district of Sydney. Painemilla is a police officer but at the time of the incident giving rise to the alleged offence he was off duty, having finished his shift at about 4:00pm on the afternoon of 19 April 2013. Notwithstanding that he was off duty, Painemilla had his police identification in his possession when he went out socialising with his friends.

9. Painemilla gave evidence before the Magistrate that between about 4:30pm on 19 April and 1:00am on 20 April he consumed about nine schooners of beer and two or three glasses of spirits. He also accepted he may have had “a couple of shots” of other alcohol purchased for him by one his companions. His evidence was that on a scale of 1 to 10, on which 10 represented someone who had “passed out”, he was in the range of 7 to 7.5 at the time of the incident giving rise to the charge against the plaintiff. In these circumstances, he accepted that his memory of the relevant events was less than perfect. Schafer had also consumed a significant quantity of alcohol. Datta, who was the designated driver, had not.

10. At about 1:35am on the morning of 20 April Painemilla, Datta and Schafer entered a McDonald’s fast food outlet in George Street and approached the counter. The Magistrate found that they had “engaged in banter and raucous behaviour” after they had entered.

11. At that time the plaintiff was also in the McDonald’s premises with two friends, Michael Moore (“Moore”) and another person identified only as “Donald”. The plaintiff said in evidence that he had consumed six schooners of beer in the course of the previous evening, although he conceded that it may have been more. Moore, who also gave evidence, said that he had about the same number of drinks as the plaintiff.

12. The plaintiff gave evidence that when he and his two friends were standing in a queue in McDonalds awaiting service, his attention was drawn to Painemilla and his companions as a consequence of their behaviour. According to the plaintiff, when Painemilla and his friends took their food to a table one of them (later identified as Schafer) swept a number of food and drink containers, which had been left on the table by previous diners, onto the floor. The Magistrate found that this had occurred in full view of Painemilla who was sitting beside Schafer at the time. Painemilla claimed that he did not see it.

13. The two groups then sat at adjacent tables. Although there were some slight variations in the evidence, all witnesses agreed that “glaring” and exchanges of offensive remarks took place between the two groups. There was also evidence, which the Magistrate accepted, that the plaintiff threw a chip towards Painemilla and his companions.

14. CCTV footage established that after about 7 minutes, the plaintiff stood up. He pointed to, and appeared to be talking heatedly in the direction of, Painemilla and his companions. The plaintiff was seen to approach the table where Painemilla and his friends were sitting. All witnesses agreed that there was further abuse exchanged at that time.

15. Painemilla gave evidence that at that point he said words to the effect:

“Let’s take this outside.”

16. He denied that in saying those words he was inviting the plaintiff or his friends to engage in a fight. His evidence was to the effect that he had said those words purely for the purposes of hoping to calm the situation.

17. The plaintiff gave evidence that he did not hear any suggestion that anybody “go outside”. He said he decided to leave the premises because that was what he was always intending to do. He said that he became surprised when he realised that Painemilla was behind him in the corridor which led out on to the footpath.

18. What followed from that point was the subject of conflicting evidence. According to the plaintiff, Painemilla came up behind him and said words to the effect:

“Hoi, I’m a police officer. You’re under arrest”.

19. The plaintiff said that he kept on walking but that as he and Painemilla reached the footpath Painemilla said something similar again, following which he produced a form of identification. The plaintiff said that he did not believe that Painemilla was a police officer and that because of this he asked to see identification card again. When Painemilla produced it, the plaintiff took it from his hand and got into a nearby taxi. The plaintiff said that he took the identification because he did not believe it was real, and because he was concerned that Painemilla was trying to use it to separate him from his friends.

20. Moore also gave evidence that Painemilla had told the plaintiff that he was under arrest. Schafer and Datta were not questioned about this issue and Painemilla denied it. However, Painemilla conceded on more than one occasion that his memory of the relevant events was poor. Whilst he did not believe that he had said the words attributed to him by the plaintiff, he was not in a position to categorically deny that he had done so.

21. Painemilla and Schafer followed the plaintiff as he walked out of McDonalds. Datta claimed that he and his companions were ushered out of the premises but as the Magistrate pointed out, that evidence was not supported by the evidence of any of the other witnesses and, moreover, was contradicted by the CCTV footage which showed the plaintiff walking towards the corridor that led to the footpath, closely followed by Painemilla.

22. Painemilla said that he took his badge from his pocket as he followed the plaintiff towards the footpath, but that he did not try and stop the plaintiff from proceeding before they got outside. The Magistrate found that account was not supported by the CCTV footage, which showed Painemilla gesturing towards the plaintiff when they were both within the confines of the restaurant. The CCTV footage showed both of them stopping for a few seconds before proceeding outside. The plaintiff could be seen to be looking at something that Painemilla was holding in front of his body. The Magistrate found that although the CCTV footage was not entirely clear, it was nevertheless consistent with Painemilla taking something from his pocket in the restaurant and producing it to the plaintiff in the corridor which led to the street. The Magistrate concluded that it was at this point that Painemilla first produced his police identification.

23. Ultimately, the Magistrate found that Painemilla did purport to arrest the plaintiff by saying words to the effect of those which had been attributed to him.

24. After the plaintiff entered the taxi, Painemilla, Schafer and Datta forcibly pulled him out. The Magistrate concluded that this was done in an effort to recover Painemilla’s identification. This led to a struggle in which the members of both groups became involved. In the course of that struggle, the plaintiff suddenly found himself unrestrained and left the scene. Schafer then ran after him, with the others continuing to struggle with each other in the vicinity of McDonalds. When that struggle had broken up, Datta noticed a marked police car driving on George Street and flagged it down. He and the plaintiff spoke to a Sergeant of police in the car. They both ignored a direction from the Sergeant to get into the car and ran off in a southerly direction along George Street.

25. Schafer caught up with the plaintiff a few blocks away. The evidence as to what happened from that point differed in some respects but both Schafer and the plaintiff agreed that they came together. Schafer took possession of Painemilla’s identification from the plaintiff, following which they began fighting. Painemilla and Datta then arrived on the scene and joined the fight. A bus driver who was parked nearby said that a person matching Datta’s description was repeatedly kicking the head of one those involved in the fight. The Magistrate rejected Datta’s evidence that he had not kicked anyone during the melee.

26. Soon afterwards, a number of police officers arrived on the scene. Subsequently, the plaintiff was arrested and charged with stealing Painemilla’s identification.

THE RELEVANT LEGISLATION

27. The Magistrate was asked to exclude the prosecution evidence pursuant to s. 138 of the EA which is in the following terms:

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

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

(b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(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.

THE GROUNDS OF APPEAL

Ground 1 – The learned Magistrate erred in holding that the question of whether to permanently stay the proceedings, which his Honour had determined were an abuse of process, was a discretionary matter.

The proceedings before the Magistrate

28. The evidence on the voir dire concluded on 7 February 2014, at which time the Magistrate reserved his decision. On 9 April 2014 he delivered written reasons declining to exclude the prosecution evidence (CB 67-75). Aspects of these reasons are examined in more detail below in relation to grounds 2, 3 and 4.

29. After the Magistrate had delivered his reasons, the parties agreed that the entirety of the evidence given on the voir dire should be tendered as evidence in the hearing. No further evidence was called and the parties then addressed the Magistrate as to whether the evidence established the elements of the offence.

30. In the course of addressing the Magistrate on that issue, counsel for the plaintiff submitted (commencing at CB 344) that one or more of the fundamental elements of the charge had not been made out. He also submitted (commencing at CB 352) that the Magistrate was “entitled to cause this prosecution case to fail by enacting the de minimis principle”. He submitted, in particular, that the case was one which was “likely to bring the administration of justice into disrepute”. In light of the submissions now made in support of ground 1, it is important to note that at no time in the course of addressing the Magistrate did counsel for the plaintiff submit that the proceedings were an abuse of process, and that they should be permanently stayed on that basis.

The Magistrate’s findings

31. Following these further submissions, the Magistrate delivered a short ex tempore judgment in which he found that all of the elements of the charge had been established. He then said the following (commencing at T18 L37):

“Finally the defendant relied on the de minimis principle. As Murphy J said in Williams v R, “The principle that the law is not concerned with trifles” is often applied to avoid the imposition of punishment after a finding of guilt where an offence is trivial but it can also be applied to avoid what he called hysterical or oppressive law enforcement, cases in which a finding of guilt would tend to bring the law of the judicial system into ridicule of contempt because of the trivialities involved. While much of what his Honour said in that case would apply to this case, for example, the oppressive nature of the law enforcement, I am concerned as to whether the taking of police identification can ever be said to be trivial. Of course, context is everything.

I consider I am entitled to have regard to what went on before and after the taking including the decision to prosecute. I note the photographs taken of Mr Painemilla on the night showing his injuries refer to him as the “victim” and the statement of one of the police witnesses is headed, “In the matter of: assault on 20 March 2013”. Of course, no assault charges were preferred presumably because when the evidence of the bus driver who witnessed the incident was considered it became clear an assault charge against Mr Monte was bound to fail.

It is relevant in my view to consider that by the time this three on one assault occurred the police badge had already been returned. It is difficult not to conclude the stealing charge was brought in an attempt to somehow negate the suggestion that the force applied to Mr Monte was otherwise completely unjustifiable.

I am inclined to view these proceedings as an abuse of process rather than as an example of the de minimis principle. I am however conscious that only superior courts have the power to stay proceedings on that basis.

Therefore, subject to any submission from the prosecution as to why it would not be appropriate, I intend to find the offence proven but deem it inexpedient to inflict any punishment and to dismiss the charge under s. 10(1)(A) of the Crimes (Sentencing Procedures) Act (sic)” (emphasis added).

32. The Magistrate then gave both parties the opportunity to make further submissions. The prosecutor indicated that she did not wish to be heard. However counsel for the plaintiff addressed the Magistrate regarding the Magistrate’s observation that he lacked the power to order a stay of the proceedings on the grounds of an abuse of process. Counsel submitted to the Magistrate that he did in fact have that power and that he had erred in concluding to the contrary.

33. In response to these submissions the prosecutor said (CB 358):

“Your Honour, I do accept that you have the jurisdiction. What I would say is that your Honour has made your decision. It would be my position to put to the court that your Honour is now functus. You have also given a penalty as well, that these proceedings are finalised.

34. Counsel for the plaintiff then said (CB 358):

“The prosecution’s position is that the court now knowing that it has jurisdiction should allow a judgment to be perfect which is now known to be based on that incorrect premise and conscionably that is a difficult position but in my submission, until the order is perfected, your Honour can correct it. It is a slip, in my submission, as to jurisdiction and once corrected should be corrected.”

35. After considering these submissions, the Magistrate then said the following (CB 358):

“I indicate that I was mistaken as to the extent of my jurisdiction. Now having had that brought to my attention I have reconsidered the issue. I am of the view that it is a finely balanced matter. It is a matter over which I obviously have discretion. I decline to stay the proceedings. I instead dismiss the charge pursuant to s. 10(1)(A) of the Crimes Procedures Act (sic).”

Submissions of the plaintiff

36. Counsel for the plaintiff submitted that on a proper reading of the Magistrate’s reasons I should determine that he had concluded that the proceedings were an abuse of process. Accepting that to be the case it was submitted that the Magistrate had then erred in concluding that his power to stay the proceedings was discretionary. In developing this submission, counsel submitted that it was important to view the Magistrate’s reasons (extracted at [31] above) in the context of his earlier judgment on the voir dire. In this regard counsel pointed, in particular, to that part of the earlier judgment which was in the following terms (CB 71):

37. “… the patent unreliability of the accounts given by (Painemilla) and his two friends is relevant to an assessment of their credibility. Further, independent evidence of their conduct calls into question the bona fides of the decision to prosecute (the plaintiff)”.

38. Counsel also relied upon the following passage (CB 71-72):

“Mr Painemilla sustained injuries in the fight and it seems clear from the captions to the photographs of him taken later than (sic) night that he was initially cast as the victim of an assault. This is supported by the heading of the statement of one of the police officers who attended the scene. No doubt, when the bus driver was interviewed, it became apparent that such interpretation of the events was unlikely to be accepted by a court and (the plaintiff) was instead charged with stealing”.

39. By reference to these passages counsel for the plaintiff submitted that when read as a whole the Magistrate’s judgment reflected that he had formed a view that the plaintiff was the “true victim” and that the prosecution had been brought for an ulterior purpose. It was submitted that these conclusions were consistent with a finding that the proceedings constituted an abuse of process.

40. It was submitted that having so found, the Magistrate erred in concluding that a decision to stay the proceedings on the basis of an abuse of process was a discretionary one. It was submitted that on a proper reading of the authorities, it was not within the exercise of discretion of any Court to allow the continuation of proceedings which had been determined to constitute abuse of process. It was submitted that once the conclusion had been reached that the proceedings fell into that category, there was no further step to be taken and that his Honour had fallen into error by “conflating the nature of his discretion to determine that the proceedings were an abuse of process with a purported discretion to stay the proceedings.” It was submitted that a proper application of the relevant principles mandated that the proceedings be stayed once the Magistrate had found that they were an abuse of process.

Submissions of the defendant

41. Counsel for the defendant submitted that the fundamental proposition underlying Ground 1, namely that the Magistrate had found that the proceedings were an abuse of process, was not made out on a fair reading of the Magistrate’s reasons. Accordingly, it was submitted that Ground 1 should fail.

42. Counsel for the defendant submitted that the Magistrate’s reference to being “inclined” to the view that the proceedings were an abuse of process was made in the context of rejecting a submission as to the application of the de minimis principle. It was argued that in circumstances where it had not been submitted to the Magistrate that he should find the proceedings were an abuse of process, his expressed inclination towards a particular view should not be elevated to a finding. Counsel emphasised that the terms in which the Magistrate had expressed himself adopted a language of inclination rather than conclusion.

43. Quite apart from the language adopted by the Magistrate, Counsel for the defendant relied upon a number of other aspects of the Magistrate’s reasons which, it was submitted, tended against the proposition that a finding had been made that the proceedings were an abuse of process.

44. Firstly, it was pointed out that it was clear that the Magistrate, albeit mistakenly, had initially concluded that he did not have the jurisdiction to stay the proceedings on the basis of an abuse of process. It was submitted that in those circumstances, given the belief that he obviously (although erroneously) held, it had not been necessary for the Magistrate to reach any concluded view as to whether any abuse of process justifying a permanent stay of proceedings had been established.

45. Further, it was submitted that the comments made by the Magistrate (in [35] above) after the error had been drawn to his attention tended completely against a conclusion that an abuse of process had been established. It was also submitted that the Magistrate’s ultimate disposition of the matter by way of dismissal was entirely inconsistent with having reached such a conclusion.

46. Finally, counsel for the defendant submitted that there was, in any event, no “conflation” on the part of the Magistrate in the terms suggested by the plaintiff. It was submitted that the power to grant a permanent stay was authoritatively recognised to involve the exercise of a discretion, following the weighing of a variety of relevant factors. It was submitted that the Magistrate’s observations in [35] generally reflected that such a balancing exercise had been performed, and that he had concluded that no abuse of process was made out.

Consideration and conclusion

47. The proposition that the Magistrate made a determination that the proceedings were an abuse of process is fundamental to Ground 1. If that is not established Ground 1 must fail.

48. That part of the Magistrate’s judgment which is said to contain the determination was delivered ex tempore, immediately following oral submissions. It has been observed on a number of occasions that it is inappropriate to take an overly critical approach to reasons delivered in such circumstances: Gommesen v R [2012] NSWCCA 226; (2012) 62 MVR 196 per Garling J at [37] – [38], McClellan CJ at CL and McCallum J agreeing); Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10 per S Campbell J at [33], Hoeben CJ at CL and Davies J agreeing). This Court is concerned with the substance of what the Magistrate said and did. His reasons are not to be approached by way of a strict construction of the transcript: Acuthan v Coates (1986) 6 NSWLR 472 at 479 per Kirby P.

49. The Magistrate did not express himself in terms of a determination, finding, decision or conclusion. Rather, he said that he was “inclined” to a particular view. The adoption of such language tends completely against the proposition that any determination was reached. It had not been submitted to the Magistrate, at any time, that he should conclude that the proceedings were an abuse of process and that an order for a permanent stay was warranted on that basis. In these circumstances, the fact that the Magistrate adopted the language that he did is unsurprising.

50. For these reasons the essential proposition underlying Ground 1 has not been made out. Ground 1 must therefore fail. However, given the submissions advanced in support of the ground, two further observations should be made.

51. Firstly, I do not accept the submission advanced on behalf of the plaintiff that any part of the Magistrate’s judgment reflects a “conflation” in the terms which were suggested. Ultimately, his Honour accepted that a decision to grant a stay of proceedings necessarily involved the balancing of a number of considerations in order to determine whether or not an abuse of process had been established. True it is that his Honour’s judgment does not articulate the details of the exercise that he apparently undertook. However as I have already observed, to parse an ex tempore judgment looking for error is not the correct approach. It is evident from the language used by his Honour that he balanced various competing factors and was ultimately not satisfied that an abuse of process was made out.

52. Secondly, his Honour’s reference to a discretion, given the context in which it was made and the circumstances in which the issue arose, can only be construed as a reference to the balancing exercise to which he referred. It should not be construed as expressing the proposition that if an abuse of process was found the power there remained a discretion as to whether to order a permanent stay. Such an approach, had it been adopted, would arguably have reflected error. Had his Honour determined that the proceedings were an abuse of process, his discretion would have been required to be exercised by making an order to stay the proceedings: R v Carroll [2002] HCA 55; (2002) 213 CLR 635 at [73]; Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 at [7]. However, for the reasons I have already expressed I am satisfied that the Magistrate was not suggesting that he had a residual discretion to refuse to stay proceedings if an abuse of process was made out.

Ground 2 – The learned Magistrate erred in applying s. 138 of the Evidence Act by characterising the conduct of the police officer as an “impropriety” rather than conduct that was unlawful

The Magistrate’s reasons

53. In his judgment on the voir dire the Magistrate summarised the facts before turning to consider the question of impropriety in the context of s. 138 of the EA (commencing at CB 72):

“Impropriety

"Impropriety" is not defined in the Act.

In his judgment in DPP v AM [2006] NSWSC 348, Hall J usefully reviewed the authorities which have determined how it is to be interpreted when considering the application of s 138.

His Honor cited with approval the comments of Smart AJ in DPP v Carr [2002] NSWSC 194 when he said that the arrest leading to the conviction under review in that case was "unnecessary and therefore an arrest undertaken in those circumstances [was] an impropriety."

Hall J also said "the fundamental principle and approach is that identified by BarrJ in DPP v CAD & Ors [2003] NSWSC 196" in which it was said; "Arrest should be reserved for circumstances in which it was clearly necessary."

His Honor held that it is not necessary that the questionable conduct was undertaken with a "consciousness of impropriety" [38].

Hall J also said while it was not necessary to establish the impropriety was intentional for the evidence to be excluded, the officer's intention was a relevant consideration. [40]

He observed that in determining whether law enforcement officers have acted improperly for the purposes of s 138 it is appropriate to "identify the content of relevant or applicable standards of conduct … informed by particular legislative provisions or administrative guidelines or instructions or codes of practice issued by the Commissioner of Police..."[42]

However, at [46] Hall J also cited observations of Basten JA in Robinson v Woolworth Ltd (sic):

In circumstances where there is no unlawfulness...mere doubt about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety.

His Honor also noted that; "where the alleged offence or offences is/are of a minor nature, that is a matter central to the determination as to whether an arrest of an alleged offender is proper or not "[49]

Application to this case

The defendant submits that even though off-duty, the complainant was required to comply with NSWPF Drug and Alcohol Policy, the Code of Behaviour and the Code of Conduct which are given the force of law by s8(4) and s211B of the Police Act and clause 9 of the Police Regulations.

R v Lawrence is cited as authority for the proposition these provisions of the Police Act, the Police Regulations and the Code of Conduct apply to off-duty officers.

Further it is submitted that by producing his badge and purporting to arrest the defendant, Constable Painemilla invoked his authority as an officer and in effect put himself on duty.

The prosecution submits that the off-duty officer's conduct was not so offensive as to amount to impropriety and that the complainant did not exercise any LEPRA powers or arrest the defendant but merely produced his badge to calm the accused down.

The defendant and Mr Moore claim that Mr Painemilla did say to the defendant that he was under arrest. The other two prosecution witnesses who were present did not deny that it was said. Mr Painemilla could only say he didn't believe he did so. I conclude, at least on the balance of probabilities, that it occurred.

Further, I do not accept that Mr Painemilla was trying to defuse the situation. He admits that he suggested that they "take it (the argument) outside." The cctv vision shows Mr Monte leaving. Contrary to Mr Datta's evidence there was absolutely no reason why Mr Painemilla and his friends could not simply have remained within the fast food outlet. Had they done so it is very likely there would have been no more trouble. I am satisfied that up to the point when the defendant began leaving McDonalds there was no valid reason for pursuing him and purporting to arrest him.

If the defendant had committed any public order offence it was of the most minor nature, having regard to the time and place in question. There was no basis for suspecting the behaviour would continue after the defendant of his own volition left the area.

I am conscious of the extract from Robinson quoted above that mere undesirability or inappropriateness will not usually amount to impropriety.

Police officers are given wide ranging coercive powers and a broad discretion as to their exercise. The power of arrest is one of the most intrusive: it must be exercised for a proper purpose as set out in s99 of the LEPRA. Vindication of hurt feelings or an attempt to gain an upper-hand in a private argument is not a proper purpose. In my view abuse of the power of arrest goes far beyond being merely undesirable. When the officer purporting to exercise the power is very drunk and in company of others who have provoked the confrontation leading to its exercise, the arrest can readily be classified as unnecessary and improper.

In my view Mr Painemilla's conduct fell far below the standard the Commissioner has reasonable set for the officers of the NSWPF and his purported exercise of the power of arrest was an unnecessary abuse of that power.

I find that the purported arrest constituted an impropriety within the terms of s 138(1)(b) of the Evidence Act.”

Submissions of the plaintiff

54. The plaintiff did not submit that the Magistrate’s characterisation of the arrest as an impropriety amounted to error. Rather, the asserted error was that the Magistrate did not find that the arrest was unlawful.

55. It was submitted that the magnitude of Painemilla’s misconduct in purporting to arrest the plaintiff was to be understood by reference to two categories of conduct which enlivened s. 138, namely:

1. contraventions of law in relation to the power of arrest; and

2. breaches of law enforcement protocol that amounted to improper conduct.

56. By reference to various provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”), and in particular by reference to ss. 99 and 201 thereof, counsel for the plaintiff identified five separate breaches allegedly committed by Painemilla which were said to render the arrest of the plaintiff unlawful. It was submitted that each of these identified breaches of LEPRA represented individual contraventions of Australian law and should have been so identified by the Magistrate.

Submissions of the defendant

57. Counsel for the defendant pointed out that it had not been submitted to the Magistrate that he should conclude that there were contraventions of LEPRA in the specific terms which were now relied upon. It was also pointed out that Painemilla had not been cross-examined before the Magistrate as to some of the provisions of LEPRA upon which reliance was now placed.

58. Counsel for the defendant submitted that it was clear from the Magistrate’s reasons that the only impropriety or contravention which had been under consideration for the purposes of s. 138 of the EA was the purported arrest of the plaintiff. It was submitted that his Honour was not asked to consider a series of contraventions which had occurred over a period of time and that in all of these circumstances, he did not err by failing to separately identify, and make findings as to, the contraventions of LEPRA which were now relied upon by the plaintiff.

59. Further, and in any event, it was submitted that even if the purported arrest was not lawful for reasons other than those identified by the Magistrate, what was important for the purposes of s. 138(1) of the EA was that the Magistrate had identified the source and the gravity of Painemilla’s conduct. It was submitted that such identification was evident from the fact that the Magistrate had referred not only to the broad range of coercive powers conferred on police, and the broad discretion as to their exercise, but also to the particularly intrusive nature of the power of arrest. It was submitted that in these circumstances, his failure to categorise the arrest as unlawful did not amount to error.

Consideration

60. In considering this ground, reference should firstly be made to the manner in which the case was conducted on behalf of the plaintiff before the Magistrate.

61. At the conclusion of the evidence on the voir dire, counsel for the plaintiff addressed the Magistrate. In the course of those submissions the following is recorded (CB 324):

62. BOLAND: Your Honour in terms of letting the evidence back in – if the impropriety – if they’re listed – and I rely on my written submissions in this regard – but if they’re listed to include the taking of the badge out, the production of the badge at Ivy – I beg your pardon - at McDonald’s, the behaviour in McDonald’s that preceded it that was necessarily caught up and encompassed by the fact that it was a police officer behaving in that way because he said so, the stoping (sic) of a person who as attempting the leave the restaurant which was illegal in and of itself, so the fact that there was no reason under s. 99 of the Law Enforcement Powers and Responsibilities Act to arrest the person, the fact that your Honour has to accept that he arrested him because there’s no reliable prosecution evidence to the contrary and there’s two very credible accounts that you’ve heard from Mr Monte and Mr Moore that, in fact, the arrest did occur”.

63. It will be noted that in the course of that passage counsel for the plaintiff specifically used the word “impropriety”. That passage also contains what appears to be the sole reference made to LEPRA in the course of the oral submissions. It will be evident that such reference lacks the detail of the submissions put to this Court.

64. The following is then recorded (CB 327):

“HIS HONOUR: Is not the issue we need to find a causal link between the offending behaviour and the impropriety?

BOLAND: Yes.”

65. Later, the following is recorded (CB 329):

“HIS HONOUR: You are still focusing only on one aspect of it; namely the impropriety.

BOLAND: Yes.

HIS HONOUR: We accept the impropriety. I have said that it is certainly arguable.

BOLAND: Yes.

HIS HONOUR: The challenge I see is that you have got to show that the evidence you want to exclude was obtained as a consequence of the impropriety.

BOLAND: Yes. Well, the impropriety – let’s call it the production and the arrest.”

66. These extracts from the transcript demonstrate that the focus of counsel for the plaintiff was directed towards establishing that Painemilla’s actions amounted to an impropriety. So much is evident from the fact that counsel used that very term himself when addressing the Magistrate. When the Magistrate then adopted the same term for the purposes of agitating the issue, counsel did not demur.

67. Following oral submissions, counsel for the plaintiff provided written submissions to the Magistrate in support of the exclusion of the evidence (CB 433-457). At para [36] of those submissions (CB 435) counsel identified a series of what he referred to as “improprieties” which were said to breach minimum standards of acceptable police conduct. But for one matter, the improprieties which were particularised and relied upon made no reference at all to any provisions of LEPRA. Even in the case of the single instance where such a reference was made, the submissions made to the Magistrate did not follow the path of those made to this Court. In particular, they did not identify the five breaches of the legislation which are now relied upon.

66. Similarly, at [58] (CB 449) the following was stated:

“However, it is submitted that the evidence of the officer’s improprieties should be considered cumulatively in order to ground this consideration in the reality of what gave rise to the incident” (emphasis added).

69. The other reference in the written submissions to LEPRA was a general one in [38] (CB 435) in the following terms:

“The alleged “contraventions of Australian Law” relate to the Law Enforcement (Powers and Responsibilities) Act.”

70. What is also apparent from the written submissions provided to the Magistrate is that counsel for the plaintiff drew no relevant distinction between an impropriety on the one hand and a contravention of law on the other. Rather, he regarded them as interchangeable terms. For example at [57] (CB 449) the written submissions included the following:

“It is noted that only one of the above-listed improprieties/contraventions need be made (sic) in order to enliven s. 138, if the evidence was indeed so “obtained” (emphasis added).

71. As a general principle, a party on appeal is bound by the manner in which proceedings were conducted at first instance. In Metwally v University of Wollongong [1984] HCA 28; (1984) 59 ALJR 481 the High Court said (at 483):

“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so”.

72. Similarly, the plurality in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 said at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

73. In the present case, although there was a passing reference to LEPRA in the oral submissions (CB 324) such submissions appear to have generally proceeded on the basis that Painemilla’s conduct constituted an impropriety.

74. Although in the written submissions references were made to LEPRA and alleged contraventions of law, those references, in comparison with the specificity of what was put before this Court on the hearing of the appeal, were somewhat oblique. It was certainly not submitted to the Magistrate that he should find the specific breaches of LEPRA for which counsel for the plaintiff now contends. As I have pointed out, a party is bound by the conduct of its case at first instance. There is an obvious difficulty in a party coming before an appellate Court and asserting that a Magistrate or Judge erred by failing to make a finding which that Magistrate or Judge was not asked to make. In the present case, such submissions as were made to the Magistrate fell substantially short of squarely submitting that a finding of unlawful conduct on the part of Painemilla should be made on a particular basis or bases.

75. These circumstances are, in my view, sufficient to support a conclusion that Ground 2 must fail. However, even if the matter had been conducted before the Magistrate in accordance with the approach taken before this Court, the Magistrate’s reasons disclose no error. It is evident from those aspects of the Magistrate’s reasons which I have extracted above that he took a dim view of Painemilla’s conduct and was clearly aware of its gravity. In those circumstances his failure to find that the conduct was unlawful, in addition to finding that it was improper, did not disclose error.

76. The conclusion that there is no error is supported by the judgment of French CJ in Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494. That case involved proceedings commenced by the Comptroller-General of Customs against various parties alleging offences against the Customs Act 1901 involving the unauthorised movement of goods from a bond warehouse, and the evasion of duty payable under the Customs Act. In the course of the investigation, and in reliance upon notices issued under that Act and its Regulations, Customs officers required production of books and documents. The admissibility of the material obtained as a consequence of the service of those notices was challenged on the basis that the material had been obtained improperly and/or in contravention of Australian law. In particular, it was argued that the statutory power to search for, and seize, the relevant documents had not been enlivened because a condition precedent to the exercise of the power had not been satisfied.

77. At first instance, the deficiency in the notice was conceded. However, by reference to an unreported decision (“O”Neill”) of a judge of the District Court, the primary judge found a second basis for concluding that the seizure of the documents was beyond power. A subsequent appeal was dismissed but in the course of its judgment the Court of Appeal held that the District Court decision upon which the primary judge relied was incorrect, and that the relevant statute did not bear the construction that had been adopted by the primary judge (which was favourable to the appellant). The appellant was granted special leave to appeal to the High Court, limited to the ground that the Court of Appeal had denied him procedural fairness by finding against him without notice of its intention to depart from the District Court decision.

78. French CJ at [87] said:

“[87] Whether O’Neill was right or wrong about s 214, there was no relevant impropriety or contravention of Australian law antecedent to the obtaining of the documents. There was an absence of statutory power to make the seizure. The character of the seizure of the five year documents was the same regardless of the circumstance that led to the conclusion that there was no power to do it. The seizure was no doubt tortious. It may well have contravened some other statute. The documents were obtained “improperly” for the purposes of s 138(1) and their seizure was probably in contravention of an Australian law or laws. But even accepting the hypothesis that there were two bases for saying the officers lacked the power to do what they did, there was thereby no additional antecedent or concurrent impropriety or contravention”(emphasis added).

79. Gummow, Hayne and Kiefel JJ said (at [135]-[136]):

“[135] However, before parting with the appeal several further points should be made or repeated.

[136] The first concerns the emphasis sought by the appellant to be given in this court to the further or additional “illegality” respecting the seizure of the five year documents, contrary to the reasoning in O’Neill. The gravity of the conduct of the officers of the ACS was in the commission of the tortious acts without the answer provided by a valid warrant. But this was not in deliberate or reckless disregard of the requirements of the Act. Further, the “illegality” was “complete” without any separate and distinct complaint respecting the five year documents and the significance of O’Neill.”

80. In the course of the hearing before me, counsel for the plaintiff made reference to the judgment of Heydon J at [163]:

“[163] It does not matter whether the present proceedings are analysed as only involving impropriety at the moment when the documents were obtained by the searches and seizures which took place, or whether there was impropriety earlier. What does matter is that even if the only impropriety was to be found in the searches and seizures themselves, there were, consistently with the approach of Simpson J and the parties in the Court of Appeal, two distinct reasons for concluding that the searches and seizures were improper or in contravention of law. Once that conclusion had been reached, and the Court of Appeal moved on to apply s 138(3), the factors there set out had to be evaluated in relation to each reason. It was possible that had evaluation been conducted in relation to the second reason, it might have turned out differently from the way the evaluation in relation to the first alone did.”

81. Heydon J dissented. The judgments of the other members of the Court support the conclusion that the Magistrate in the present case did not err by failing to find that the arrest was unlawful.

82. For all of these reasons, Ground 2 is not made out.

Ground 3 – The learned Magistrate erred by interpreting s. 138 of the Evidence Act by requiring that criminal acts committed following unlawful police conduct be “reasonably foreseeable”, “expected” or a “necessary or reasonable response in order to be capable of being regarded as having been causally connected to, and thus obtained in consequence of, the unlawful police conduct

The Magistrate’s reasons

83. Having referred to various authorities in which the causal link between an impropriety and the obtaining of evidence had been considered, the Magistrate proceeded to apply the relevant principles to the facts of the case before him. In doing so he said (CB 74-75):

“Application to this case

The defence in this case submits that the arrest precipitated the stealing of the badge because the complainant was misusing the warrant card to exert improper power over the defendant and he could therefore be expected to take the card to lawfully resist the unlawful arrest - to, in effect, disarm the off-duty officer, whom he did not believe to be a police officer. It is submitted the taking of the card was not an unnatural response.

The prosecution denies the officer was acting improperly and denies there is sufficient connection between the officer's behaviour and the taking of the badge - that even if the defendant believed the badge to be fake and the complainant not to be a police officer, that would not entitle him to take the badge.

I have found that the complainant, an off-duty police officer, acted improperly when he purported to arrest the defendant. In my view that would have entitled the defendant to resist that arrest So, for example, if Mr Painemilla had seized hold of Mr Monte, I consider the later (sic) could have used reasonable force to free himself. Had the off-duty officer produced a baton or a gun, I consider the defendant could lawfully have taken it from him, had he been able to because those items would have been the agents through which the off-duty officer was threatening to apply unjustified force to the defendant.

There is no doubt that had the warrant card not been produced, it could not have been taken and so there is a connection between the two actions. However, I do not consider the taking is an action that is reasonably foreseeable or would have been expected. I do not consider the production of the card caused it to be taken. I do not accept the taking of the card was a necessary or reasonable response to the unnecessary arrest. Taking the card and attempting to leave the scene with it is more akin to stealing.

Unlike the watch-house prisoner in Robinett’s case, this defendant could have left the scene and I don't accept that it was reasonable or necessary for him to take the card with him in order to avoid the effect of the unnecessary arrest The card was not of itself a threat to the defendant; it was merely ancillary to the complainant's improper assertion of a right to arrest him. In my view, the defendant's taking of the card was an unnecessary and unexpected reaction to the card being produced and the claim by the complainant to arrest the defendant The two actions were temporally, but not causally connected, in my view.

Accordingly, I find the evidence of the taking of the card was not obtained in consequence of the impropriety” (emphasis added in each case)

84. The italicised paragraphs in the extract in [81] above are particularly relied upon by the plaintiff in support of this ground.

Submissions of the plaintiff

85. Counsel for the plaintiff submitted that the Magistrate’s construction of the term “obtained” involved a conflation of the lawful rights of the plaintiff with the operation of s. 138 of the EA. This, it was submitted, was a misconstruction of s. 138, and of the nature of the exercise which was required by that section to be undertaken. The essence of the plaintiff’s argument was that the interpretation of the word “obtained” as it is used in s. 138 must necessarily be a flexible one which effectively allows for expansion and contraction according to the gravity of the alleged impropriety.

Submissions of the defendant

86. Counsel for the defendant submitted that the Magistrate’s approach to the construction of the term “obtained…in consequence of” as it appears in s. 138 of the EA was entirely consistent with authority. In particular, it was submitted that the meaning of the statutory term did not broaden as the relevant impropriety or contravention became greater. Whilst the defendant accepted that the phrase “obtained…in consequence of” should not be construed in an unduly narrow way, it was submitted that the authorities did not support the broad approach advocated by the plaintiff.

Consideration and conclusion

87. In Director of Public Prosecutions v Coe [2003] NSWSC 363 Adams J considered the meaning of the word “obtained” in s. 138 in the context of an application to exclude evidence of an alleged assault by the defendant upon a police officer. In that case the Magistrate had found in favour of the defendant, concluding that the police officer had made, or had attempted to make, an unlawful arrest. His Honour said at [24]:

“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.”

88. The observations of Adams J were considered by Hall J in Director of Public Prosecutions (NSW) v AM [2006] NSWSC 348; (2006) 161 A Crim R 219. In that case the defendant was one of a group of people who had been asked by the police to move on, following which she swore at the police a number of times and ignored a warning to stop. A police officer then arrested the defendant but as a consequence of intervention by other members of the group, the defendant ran away. The defendant was subsequently arrested and charged with resisting arrest, using offensive language and assaulting a police officer. A plea of guilty was entered to the charge of offensive language but the Magistrate dismissed the two other charges, concluding that the arrest of the defendant was unnecessary and constituted an impropriety within the meaning of s. 138 of the EA.

89. Hall J found that the Magistrate had erred in law in reaching those conclusions. On his analysis of the facts and circumstances, his Honour concluded that the arrest was not ill-advised or unnecessary, and that there was therefore no impropriety within the meaning of s. 138(1). Accordingly, the question as to whether or not the evidence was obtained within the meaning of that provision did not arise. In the course of reaching that conclusion his Honour made a number of observations to which I was taken by the parties in the present case in the course of argument.

90. Firstly, at [75] his Honour said the following:

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

91. In the present case the evidence is of a similar character to that to which his Honour referred.

92. His Honour then turned to the judgment of Adams J in Coe at [24] (set out in [85] above) and said (commencing at [79]):

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

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

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

(a) Where a law enforcement officer intentionally engages in purposive action designed or expected to procure or induce the commission of offences, then plainly evidence of those offences will have been “obtained” in relation to them. (b) Where a person is subject to an ill-advised or unnecessary arrest but the suspected offender acts in a way which amounts to a disproportionate reaction, an issue may arise, as it did in Coe , as to whether that offence can, as a matter of causation, be said to be a consequence of the arrest. (c) In other circumstances, however, offences that stem from an ill-advised and unnecessary arrest, may objectively be considered the anticipated or expected outcome and so “obtained” for the purposes of s.138. Carr is such a case.

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

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

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

93. Both Adams J in Coe, and Hall J in AM, referred to the decision of Bleby J in Robinett v Police [2000] SASC 405; (2000) 78 SASR 85; 116 A Crim R 492. In that case, the defendant had been arrested for a series of public order offences in the course of which capsicum spray had been used to subdue him. After his arrest, he was abusive towards the police and his requests for medical attention to treat the consequences of the use of the capsicum spray were denied. In addition, the arresting police omitted to inform him of a number of his rights. The defendant then said a number of things which led to further charges being laid against him over and above those for which he originally been arrested.

94. The defendant appealed against a decision of the Magistrate to refuse to exclude the evidence of the commission of those further offences. Bleby J concluded (at [40]) that in so far as the appeal relied on the failure of the police to properly inform the defendant of his rights, it could not succeed. His Honour said:

“It cannot be said in this case that the failure gave rise to the appellant’s outburst, or that it has procured the commission of the present offences, or that it has enabled the prosecution to obtain relevant evidence of the offences.”

95. However, his Honour took a different view concerning the failure on the part of the police to properly respond to the defendant’s requests for, and to obtain, appropriate medical attention. His Honour said (at [69]):

“In my opinion this was an omission which was not only inappropriate, but which fell into that category of impropriety or unfairness that gives rise to the exercise of the public policy discretion. 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.”

96. In argument before this Court, both parties appeared to embrace the judgment of Hall J in AM insofar as his Honour dealt with the issue of the meaning of the word “obtained” as it appears in s. 138. In particular, counsel for the plaintiff submitted that Hall J’s decision “best crystallised” the weight of authority in relation to the appropriate construction of the word “obtained” in circumstances of illegal arrest. In particular, he submitted that Hall J’s analysis (at [82] of his judgment) properly reflected the law. Counsel for the defendant did not dissent from those propositions.

97. I am not satisfied that the Magistrate erred in the manner for which the plaintiff contends. In the present case there was no suggestion that there was any intention on the part of Painemilla, in purporting to arrest the plaintiff, to provoke the commission of the offence with which the plaintiff was subsequently charged. In the course of his judgment in AM (at [82]) Hall J concurred with the views of Adams J in Coe that in order for evidence to be “obtained” it may be necessary for the conduct constituting the arrest to be of a kind that could be expected to give rise to the commission of further offences. Given the nature of this case, the existence or otherwise of such an expectation was a relevant factor to be taken into account in determining whether the evidence was obtained in the way contemplated by s. 138. That is exactly the approach that the Magistrate adopted. In doing so, he acted completely in accordance with the decision of Hall in AM.

98. Moreover, in AM Hall J at [83] observed that references to what might be expected to follow from certain conduct related to the likelihood of an event occurring. The Magistrate’s reference to something being “reasonably foreseeable” should be viewed in that context. When so viewed, it is clearly not in error.

99. There is no doubt that the Magistrate was aware of the decision in AM. He referred to it at some length. He did not conclude that elements of reasonable foreseeability, necessary or reasonable response, unnecessary and unexpected, reaction were pre-requisites to a finding that the evidence had been obtained. Read as a whole, the relevant passages of the Magistrate reflect that he adopted an approach wholly consistent with that of Hall J in AM. Counsel for the plaintiff was not able to point to any authority in support of the proposition that the interpretation of the word “obtained” in s. 138 should expand and contract according to the nature of the impropriety or illegality alleged.

100. For those reasons, Ground 3 is not made out.

Ground 4 – The learned Magistrate erred in finding that the evidence of stealing was not “obtained in consequence of” the conduct of the police officer

The Magistrate’s findings

101. The Magistrate’s findings which are relevant to this Ground are set out in [81] above

The submissions of the plaintiff

102. Counsel for the plaintiff submitted that no proper application of the law to the facts could support the Magistrate’s findings and relied on the submissions advanced in support of Ground 3. However in addition, counsel for the plaintiff submitted that it was necessary for the Magistrate to consider the nature and gravity of the conduct of Painemilla in determining whether or not the evidence was “obtained” for the purposes of s. 138. It was submitted that the Magistrate should have considered the degree to which Painemilla departed from acceptable law enforcement techniques as this was a matter which had a bearing on whether or not the discretion in s. 138 was enlivened.

Submissions of the defendant

103. Counsel for the defendant submitted that Grounds 3 and 4 effectively raised the same issue such that if the plaintiff failed on Ground 3, Ground 4 would inevitably meet with a similar fate. Counsel essentially relied upon the submissions advanced in support of Ground 3.

Consideration and conclusion

104. For the reasons already outlined, I have found that Ground 3 is not made out. In my view, the issues which are raised in Ground 3 are inextricably linked to those in Ground 4, such that the grounds must stand or fall together. For the reasons previously expressed, the Magistrate did consider, and as a consequence was aware of, the nature and gravity of the conduct of Painemilla.

105. The Magistrate found as a fact that the taking of the police badge was not (inter alia) an expected response to the purported arrest. The submissions of the plaintiff failed to explain why that finding was not open.

106. In these circumstances, and in light of my conclusions in respect of Ground 3, Ground 4 must fail.

ORDERS

107. I make the following orders:

1. The Summons is dismissed.

2. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 31 March 2015