Police v Brett Lee Nye

[2003] NSWLC 9

Local Court of New South Wales

CITATION:	Police v Brett Lee Nye [2003] NSWLC 9
JURISDICTION:	Criminal
PARTIES:	Police Brett Lee Nye
FILE NUMBER:
PLACE OF HEARING:	Moruya
DATE OF DECISION:	12/20/2002
MAGISTRATE:	Magistrate D Heilpern
CATCHWORDS:	Crimes - Practice and Procedure - Arrest - Evidence
LEGISLATION CITED:	Evidence Act 1995 Summary Offences Act 1988
CASES CITED:	R v Coombe (unrep CCA NSW 24/4/97) Hunt CJ R v Coulstock (1998) 99 A Crim R 143 Carr v DPP (unrep NSWSC Smart J) Hazell v City of Parramatta (1968) 1 NSWLR 165 Bales v Parmeter (1935) 35 SR NSW 182 Williams (1986) CLR 278 Pirani and Diggins v Hardy (NSWSC Smart J 9/9/84) R V Merrit (2002) Crim LN (1474) R v Haddad and Treglia (2000) NSWCCA351 Robinett v Police SCGRG-00-11-2000 R v Dalley Crim LN 55(1446) Ridgeway (1995) 184 CLR 19 R v K 119 ALR 596
REPRESENTATION:	Davis for Police Edmunds/Smith for Defendant
ORDERS:	Charge dismissed.

Reasons for Decision

Proceedings

1 This matter first came before the local court at Batemans Bay for hearing on 26 September 2002. On that day the prosecution case was tendered without objection, some questions were asked of the informant Snr Const Magrin, and some legal argument was entered into. The matter was then adjourned for legal submissions on the issue of “execution of duty” to Moruya on 25 October 2002. On that day the defence indicated that they wished to raise a legal issue as to the admissibility of much of the prosecution case on the basis of s138 Evidence Act 1995. This effectively was a re-opening of the case as the evidence was previously admitted without objection. Graciously, and most fairly, Mr Davis agreed to that course, and I heard legal argument on s138 and on the issue of execution of duty. Thus this judgement deals with two distinct issues, the first evidentiary, and the second substantive.

2 In essence the defence is arguing that the evidence of intimidation should be excluded due to the illegality or impropriety of the officers actions with respect to a young person. Should the evidence be admitted, the defence is arguing that the prosecution have failed to prove that the officer was acting in the execution of his duty.

Facts

3 There is no contention as to what occurred. At 12.40pm on 28 June 2002, Snr Const Magrin and Curry were in uniform patrolling in the CBD of Moruya. They saw a group of 10 – 15 people standing on the corner of Vulcan and Church Street on the footpath and outside an hotel. The group consisted of adult males (one of whom was the defendant, an aboriginal male) and juveniles (one of whom was an aboriginal thirteen year old, KB). The statement of Snr Const Magrin describes what next occurred:

4. The group were loitering and blocking the footpath impeding pedestrian traffic. We pulled the police vehicle to the side of the road to speak to the group. Immediately upon stopping the barman, Bob, from the Hotel walked from the bottle shop section of the pub to the police vehicle and spoke with Senior Constable Curry and I.


5. I exited the vehicle and walked to the group. I noticed the accused, Brett Nye, standing immediately outside the main door to the Monarch Hotel. I said “What are you all doing here”. A number of people replied saying, “Nothing” and “Just standing here”. The accused moved toward me and said, “We can stand here”. While speaking with the group a frail and elderly lady tried to walk through in a Northerly direction along the footpath. She manoeuvred through the group and as she walked behind the accused he moved back slightly and knocked the lady. She put her hand on the wall of the Hotel to stop her falling. The accused did not appear to notice.


6. I addressed the group and said loudly, “Due to the complaints received and the fact that you are blocking the footpath I am giving you all a direction to move from the area. If you don’t move you can be given a fine or arrested”. The accused became aggressive and said loudly, “I can stand wherever I like. I’m not going to be told by you what I can and can’t do”. I said, “I’ll give you a ticket if you like”. He yelled “We don’t have to go nowhere”.


7. Some of the group, about 5 or 6 people left…..however the majority of the group, including the accused, walked slowly to a seat, still outside the Monarch Hotel, about ten metres south of where the direction was issued. While walking the accused was saying very loudly, “We don’t gotta go nowhere Magrin”. Two people sat on the seat and the others loitered about the footpath still blocking pedestrian traffic.


8. I walked to the group and said loudly, “You are still blocking the footpath. This is not good enough. You must all move from the CBD or I’ll start writing out tickets”. A young person known personally to me, KB, was standing of the footpath with the group and said to me “I am not going nowhere”. I said to him, “What did you say”. He said “I am staying here”. I knew that Kyle was 13 years old and not eligible for an infringement notice so I said “If you don’t move on Kyle I will take you to your mums house and deal with you there”. Kyle shrugged his shoulders.


9. I said “Alright Kyle you are coming with us. We are going to see your mother. Come on”. Kyle stood still so I took him by the sleeve of his jacket. The accused walked towards me and took hold of Kyle by his right hand and my arm with his left hand and tried to pull my hand from Kyle’s jacket while yelling “He’s not going nowhere, let him go”. I said “Brett leave us alone. Don’t interfere”. He said “I don’t give a fuck. You copper cunts are always picking on us. What are you going to do about it Magrin”. I said “Walk away Brett or you’ll be summonsed for hindering”. Brett said “leave him alone. What are you taking him for”. I said, “Brett, I am taking him home to his mother as he has failed to obey a direction to move on. If you don’t stop interfering I will summons you”.


10. Brett then released his grip on Kyle and I took Kyle to the police vehicle and secured him inside. I said to the group “Leave now. No more chances”. The group, including the accused, walked slowly along the footpath of Vulcan Street. The accused was very agitated, loud and aggressive. As he walked he turned and faced me, walking backwards, and yelled, “Fuck you Magrin. You think you’re a big man”. I said “Keep walking Brett”. The accused looked toward Senior Constable Curry and I and yelled, “Come on. Take your jumper off. I’ll smash you cunts”.


11. Brett became increasingly aggressive and agitated. Other members of the group were trying to lead him away but he was resisting. He turned and faced our direction and stood still. From a distance of about 10 metres he yelled very loudly, “Fuck you copper cunts. Yous are going down”. The accused then looked at me and pointed directly at me and yelled loudly, “Especially you Magrin. I’m going to punch the fuck out of you, copper cunt. You wait. You wait till I see you down the street, off duty, without your fucking uniform. I’m gunna smash you so bad”.

4 It is these words in paragraph 11 above that are said to constitute the offence of intimidate police pursuant to s60(1) Crimes Act 1900. There was further abuse from the defendant as he was led away by others. Snr Const Magrin and Curry then drove KB to his mothers where he was warned for failing to move on. Later that day the defendant was stopped whilst riding a pushbike without a helmet on and he was informed he would be summonsed for offences. The officer in his statement expressed his fear of the accused.

5 At the hearing on 27 September 2002 there were certain portions of the statements of the police that were not pressed, and remain crossed out on the exhibits. Snr Const Magrin was then cross-examined. It was established that the young person was placed in the back of the police truck.

Q. And is it when you were taking him or purporting to lead him away, is that when Brett Nye became perhaps more agitated?


A. Yes, more agitated, yes he was initially agitated and aggressive but he did become more so when we arrested the young person.


Q. And I appreciate you are not a mind reader but what you were doing to a person like Brett Nye would be in his eyes, would be placing that young person under arrest and taking him away?


A. Yes but it was explained to him that he was going to see his mother, we were taking him to his mother, yeah……..

6 When asked about the complaint by barman Bob the officer answered

We did receive a complaint from, off the barman in The Monarch, that was only after we had stopped, we stopped to speak with them because we saw that they were in fact impeding pedestrian traffic and congregating and appeared to be loud and whatever else so we stopped to speak with them and see what they were up to and as we stopped, Bob the barman came out and made a complaint about the behaviour of the group.

7 When asked about the move on direction and the young person the following exchange took place

Q. Did you provide your name and place of duty during the direction?


A. I believe that Brett knows me very well.


Q. A short question?


A. No


Q. Did you inform the person of the reason for the direction?


A. I did say “That due to complaints received and the fact that you are blocking the footpath, I am giving you all a direction to move from the area, and if you don’t move you can be given a fine or arrested”.


Q. The removal of the juvenile from there, was the juvenile placed under arrest?


A. Well technically it was just for the purpose of conveying him to his parents where I could issue a warning, an informal warning in regards to failing to comply as he couldn’t be issued with an infringement notice being under the age of fourteen, there was no other way to deal with him and if he refused to move after several warnings and even after I told him directly, he directly told me back that he wasn’t going anywhere as I had no other course available to me I believe.


Q. Sorry, was he under arrest or not under arrest, did you tell him he was under arrest?


A. I said words to the effect of “If you don’t move on Kyle, I will take you to your mums house and deal with you there” and when he refused to move, I said “All right Kyle, you are coming with us”, so otherwise informing him that he was removed, now taking his liberty away from him, I guess he was aware that he was under arrest.


Q. You are aware aren’t you that warnings can be given on the run so to speak, they don’t have to be given in front of his mother?


A. Yes, that’s right, but I mean to stop the continuation of the offence, I could not give him a warning and obviously he wasn’t going to go anywhere, so I mean what could I do, stand there, you can’t just let him continue to fail to comply with the move on direction, it defeats the purpose.

8 The answer to this last question was given in an indignant and arrogant fashion. From the officers demeanour in the witness box, I formed the impression that he was determined that the young person was not going to get away with disobeying his directions, and that in the battle of wills that was occurring he, the police officer, was going to win. My notes indicated that the last sentence comprised a rhetorical question defensively put to Mr Edmunds – “What could I do, just stand there?” The officer was adamant that he was not going to do that.

9 Section 138 of the Evidence Act 1995 NSW is as follows:

138 (1) Evidence that was obtained:


improperly or in contravention of an Australian law; or


in consequence of an impropriety or of a contravention of an Australian law


is not to be admitted unless……




The onus of proof on the balance of probabilities is clearly on the defence for this part this part of the test, although it shifts to the prosecution should an illegality or impropriety be established - R v Coombe (unrep CCA NSW 24/4/97) Hunt CJ at CL at 25, R v Coulstock (1998) 99 A CrimR 143. . The defence submit that the officer was acting unlawfully in that the move on direction was deficient and ineffective, that it was unlawful to arrest a child in these circumstances given s8 of the Children Criminal Proceedings Act , s7 and s15 of the Young Offenders Act , and, concomitantly, that the arrest was unlawful in that he did not have reasonable suspicion that an offence has been committed pursuant to s352 of the Crimes Act .

10 Section 28F of the Summary Offences Act 1988 is as follows.

(1) A police officer may give a direction to a person in a public place if the police officer has reasonable grounds to believe that the person’s behaviour or presence in the place (referred to in this section as "relevant conduct"):



(a) is obstructing another person or persons or traffic, or

(b) constitutes harassment or intimidation of another person or persons, or


(c) is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or


(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or


(e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.


(2) The other person or persons referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in.


(3) Such a direction must be reasonable in the circumstances for the purpose of:


(a) reducing or eliminating the obstruction, harassment, intimidation or fear, or





(b) stopping the supply, or soliciting to supply, of the prohibited drug, or


(c) stopping the obtaining, procuring or purchasing of the prohibited drug.


(4) A police officer may give a direction under subsection (1) only if before giving the direction the police officer:


(a) provides evidence to the person that he or she is a police officer (unless the police officer is in uniform),


and


(b) provides his or her name and place of duty, and


(c) informs the person of the reason for the direction, and


(d) warns the person that failure to comply with the direction may be an offence.





(5) If a police officer has complied with subsection (4) in giving a direction to a person and the person fails to comply with the direction, the police officer may again give the direction and, in that case, must again warn the person that failure to comply with the direction may be an offence.


(6) A person must not, without reasonable excuse (proof of which lies on the person), fail to comply with a direction given in accordance with subsection (5).



[ Penalty: Maximum penalty: 2 penalty units. ]


(7) A person is not guilty of an offence under subsection (6) unless it is established that the person persisted, after the direction concerned was made, to engage in the relevant conduct.


(7A) A police officer may give a direction under this section to persons comprising a group.


(7B) In the case of a direction that is given to a group of persons under subsection (1), the police officer is not required to repeat the direction, or to repeat the information and warning referred to in subsection (4), to each person in the group.


(7C) In the case of a direction that is given to a group of persons in accordance with subsection (5), the police officer is not required to repeat the direction, or to repeat the warning referred to in that subsection, to each person in the group.


(7D) However, just because the police officer is not required to repeat any such direction, information or warning does not in itself give rise to any presumption that each person in the group has received the direction, information or warning.


(8) For the purposes of subsection (1) (c), no person of reasonable firmness need actually be, or be likely to be, present at the scene.


(8A) For the purposes of this section, a reference to failing to comply with a direction includes a reference to refusing to comply with the direction.

11 In my initial judgement in Carr, I commented

The maximum penalty for this offence is a fine of $550. This indicates that the offence is at the lowest end of the criminal ladder - lower in fine than many traffic matters involving significant risk to the public. Arrest for such traffic matters is unheard of. This offence is not one where public safety is alleged to be at risk. Arrest for a matter where the maximum penalty is a fine is in a very special category. For arrest is the deprivation of liberty. Even if for an hour or a day, the deprivation of liberty is a punishment in itself, the worst punishment our criminal justice system has to offer and a punishment, which the courts themselves cannot impose for this offence. Arrest for offensive language automatically means that a suspect suffers a greater penalty than they could possibly get by going to court even if found guilty.

12 These comments are even more applicable to this situation where the offence is lower on the criminal scale, and the alleged offender is a thirteen-year-old child. In the Supreme Court in Carr, Justice Smart found (at 35)

This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting and assaulting the police. The pattern in this case is all too familiar. It is time the statements of this Court were headed.

13 It is clear that the officer did not comply with s28F(4)(b) in that he did not provide his name of his place of duty. The prosecution conceded this, although Mr Davis suggested that the breach was technical, as the defendant knew the officer and it would be a reasonable inference from the evidence that the officer and the young person were acquainted. At first blush this does seem to be a technical breach. However I have come to the view that the breach was more than just technical, but is substantive and important. The “move on” provisions of the Summary Offences Act give police a wide power that they did not previously have. That power is sweeping in the sense that those who are not committing any offence can be ordered to move from their chosen place at the discretion of a police officer. Parliament has created safeguards in the exercise of this power including a duty for the officer to give his or her name and station before the offence can be committed, and indeed before the second direction can effectively be given. The word “only” in s28(F)(4) is not superfluous. The courts have consistently interpreted such legislation and such powers strictly in favour of ensuring that the power is exercised only in accordance with the law: Adams v Kennedy (2000) 49 NSWLR 78. This is not the end of the matter however, as just because a person may later be acquitted does not mean that an arrest is unlawful: Dearing v Passi 2 Crim LN 13 [337].

14 Section 352 of the Crimes Act 1900 NSW is as follows:

352. (1) Any constable or other person may without warrant apprehend,


(a) any person in the act of committing, or immediately after having


committed, an offence punishable, whether by indictment, or on summary


conviction, under any Act………………


and take the person, and any property found upon the person, before an

authorised Justice to be dealt with according to law.


(2) Any constable may without warrant apprehend,


(a) any person whom the constable, with reasonable cause, suspects of


having committed any such offence or crime,

15 The courts have held that that s352 applies to all statutory offences - even local government by-laws: Hazell v City of Parramatta [1968] 1 NSWLR 165. In this case the defence must satisfy me that the arrest was unlawful. For the arrest to be lawful it must have been for the purpose established by statute and as per the interpreting cases.

16 Arrest for any other purpose is not lawful - Bales v Parmeter (1935) 35 SR NSW 182, Williams (1986) CLR 278. In Pirani and Diggins v Hardy SC NSW Smart J 9 September 1984 the court found as follows:

“An arrest will not be within power unless it is effected in good faith and for the purposes contemplated by the enactment….the purpose of the acts done must be to vindicate and to give effect to the law”.

17 In R v Merrit, [2002] Crim LN [1474] the defendant stood trial for using a weapon with intent to avoid lawful apprehension. Two police approached a caravan where the defendant was hiding. They entered the caravan over the objections of a third party and the defendant brandished a spear at them. The police identified themselves, informed the defendant of the reason he was to be arrested for driving matters. However they did not “announce prior to entry”, a common law requirement. The Court of Appeal entered a verdict of acquittal finding that the apprehension was not lawful and thus an element of the offence was not proven.

18 It is clear is that the officer suspected an offence had been committed. However, I agree with the submission that it is difficult to conclude that this belief was reasonable. How can it be reasonable when for the offence to be committed the officer must do certain things? He did not do one of those things. Reasonable cause imports an objective standard to the suspicion. I concur with Mr Smiths submission that there was not reasonable cause to suspect the young person of having committed the offence. I am satisfied on the balance of probabilities on this ground that the arrest was unlawful.

19 Section 8 of the Childrens Criminal Proceedings Act 1987 states that Criminal proceedings “should not be commenced against a child otherwise than by way of summons or attendance notice”. Exceptions include a serious children’s indictable offence, violence and indictable drug offences. There are further exceptions where the police officer believes on reasonable grounds that the child is unlikely to comply with a summons or attendance notices or is likely to commit further offences if the proceedings were commenced by summons or attendance notice. Further, s8(3) provides that

(3) If a child fails to comply with an attendance notice, the child’s attendance at the proceedings to which the notice relates should, unless there are exceptional circumstances, be enforced by way of summons rather than by way of warrant.

20 Clearly it is parliaments intention that children should not be taken into custody, or even have warrants issued for their arrest where they do not appear at court, unless there are exceptional circumstances or unless there are serious offences.

21 Section 7 of the Young Offenders Act 1997 reinforces this view, and in particular with the provisions of Warnings under that Act.

Principles of scheme



The principles that are to guide the operation of this Act, and persons exercising functions under this Act, are as follows:


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

22 It almost goes without saying that the deprivation of liberty following arrest is the most restrictive form of sanction.

23 Section 15 of the Young Offenders Act 1997 is as follows:

1) A warning is to be given by the investigating official and may be given at any place, including a place where the child is found.


(2) An investigating official who gives a warning to a child must not:


(a) attach any conditions to the giving of a warning, or


(b) impose any additional sanctions on a child to whom a warning is given.

24 Mr Davis submitted that the Commissioners Instructions (at C9) prescribe that penalty notices should not be given to those under fourteen years. He submitted that a court attendance notice or summons necessarily involved the young person in court proceedings, which defeats the purpose of a warning. Accordingly, the arrest and removal for a warning was the most appropriate and effective step to take, given the close proximity to licensed premises, the ongoing nature of the offence and the other circumstances. It was the last resort in an effort to ensure good order of the community. Adults were threatened with tickets and summonses because they were adults.

25 I do not accept that this is the position. To suggest that this legislative scheme creates a situation where the legitimate response to a failure to move-on is to arrest a thirteen year old and place him in the caged rear portion of a truck in the middle of the day in the centre of town is in my view incorrect. The scheme is designed to create the complete opposite - that children should not be arrested unless it is absolutely necessary. The defendant did not move on and he was threatened with a ticket. He sought to physically interfere with an arrest and was threatened with a summons (twice). He threatened the police officer and swore and was permitted to leave and later issued summonses. He was riding a pushbike without a helmet (a continuing offence) and was allowed to continue with the offence. The young person fails to move on and he is immediately arrested. That is not reflective of the law. To arrest for the purpose of giving a warning is the very antithesis of the purposes and the procedures set out in these Acts and the Commissioners Instructions.

26 It is clear that the reason for the arrest was that the young person was not doing as he was told. There was no breach of the peace alleged. That is not an arrest according to law. It is in contravention of the requirements (“should”) of s8 of the Children (Criminal Proceedings) Act. It is in contravention of additional sanctions in s15 of the Young Offenders Act. It was “not for the purposes contemplated by the enactment” and nor was it “to vindicate and to give effect to the law”.

27 To accept Mr Davis’s submission would be to place children in a much worse position than an adult in the same situation.

28 A lawful response was to leave the child where he was if he failed to comply with the direction. A lawful response was to issue him with a warning on the spot. A lawful response was to later arrange for a caution or a summons or a court attendance notice if necessary and once the appropriate procedures had been undertaken with the youth liaison officer.

29 I am satisfied on the balance of probabilities that the arrest was in contravention of law in that firstly the officer did not have reasonable suspicion that a crime had been committed, and secondly (although it is not strictly necessary to go further) that the officer was acting in contravention of the provisions detailed above.

30 Should I be incorrect in the view expressed regarding illegality, I now turn to the issue of impropriety. I need only refer to DPP v Carr to deal with this issue, and in particular the comments of the court regarding arrest as a last resort and paragraph 35 in that judgement. Here we are dealing with a child. Here we are dealing with an even more minor offence than in Carr. There was no issue of public safety. The officer knew the young persons name and address. To arrest a young person for (at worst) a minor offence to issue a warning is in my view improper. Section 28F of the Summary OffencesAct 1988 was not complied with. Parliaments intention as evidenced by s8 of the Childrens Criminal Proceedings Act and the Young Offenders Act was thwarted. There is no evidence that the commissioner’s instructions with respect to arrest were considered.

Under the heading Arrest the Handbook states:

“Remember, arrest is an extreme action. Keep in mind other means of getting someone to court (eg: summons, CAN)”

Under the heading CAN or Summons the Handbook states (Original has bold)

“Do not arrest someone for a minor offence when a summons would get them before court. Do Not use CANSs to circumvent proceedings by summons”

Under the heading Custody The Handbook states (Original has bold)

“Use arrest as the last resort in dealing with offenders. Detain in police custody only after considering all available alternatives eg: infringement notice, summons, court attendance notice etc. Do not arrest someone for a minor offence when it is clear a summons or alternative process will do”

31 I am satisfied on the balance of probabilities that the arrest was improper.

Consequence

32 This requires careful analysis of the judgement in Carr. In that case in my judgement I applied a “but for” test. On appeal the issue was canvassed in some detail. Consideration was given to R v Haddad and Treglia [2000] NSWCCA 351 and Robinett v Police SCGRG-00-11-[2000]. In short, the court appears to be saying that the “but for” test was appropriate in the Carr case given the factual circumstances. I have carefully read these three cases and they do not canvass, but do not preclude, the situation in this case. Were the young person to have uttered threats to the police officer whilst he was unlawfully/improperly being arrested then the situation would be clear. In Robinett, the test is described as “caused or contributed to the commission of the offence”. The Supreme Court in Carr endorsed that test. Accordingly the issue is whether I am satisfied on the balance of probabilities that the actions of the officer caused or contributed to the actions of the defendant in making a threat.

33 The first thing to note is that the comments said to constitute the offence were most proximate in terms of time, being only moments after the arrest. There is no hiatus or significant gap in time. The physical resistance was concomitant with the arrest. The words were spoken almost immediately after the young person had been locked in the caged portion of the vehicle. In Carr the alleged intimidation offence took place some time later and was directed to an officer who was not even present at the improper arrest. Yet the Supreme Court found that there was sufficient link for the evidence to be excluded.

34 Secondly, the officer’s evidence is that the arrest of the young person led to the defendant becoming more aggressive and agitated. Up until that time the defendant had been uncooperative, but without swearing or threatening. Following and during the arrest it is clear from the evidence that the temperature went up. It is possible that the arrest did not contribute to the offence in the sense that the defendant could have become abusive and threatening at any rate. However, in my view a reading of the statements of the police and of the transcript supports the conclusion that it is more likely than not that the illegal or improper arrest contributed to the offence. I would not characterise the contribution as minor. In my view it was substantial. The defendant was clearly upset by the arrest of the young person. He went over to the pair and held both the officer and the young person. It would seem most likely that the defendant was able to restrain himself from further physical contact with the police in trying to release the young person following being threatened with a summons, but not from yelling threats as he departed. It is more likely than not that if the young person was not arrested that the threats would not have been made.

35 Thirdly, I am mindful of the Supreme Courts comments in Carr at para 63 with respect to the circumstances of the individual case. Clearly had the defendant pursued his physical intervention further, and committed serious bodily harm to the officer then it would be, on the basis of the Carr findings, less likely to be “in consequence” of the initial impropriety or illegality.

36 The onus here remains on the defendant R v Dalley Crim LN 55 [1446]. I am satisfied on the balance of probabilities, in the context of the facts in this case, that the illegal/improper act of the officer caused or contributed to the offence. I do not come to this conclusion without some hesitation. I cannot find any examples involving third parties in the authorities, except in entrapment type cases such as R v Cummings CCA NSW 23 November 1998. In that case A was acquitted, the court finding that he was entrapped into a drug transaction. A, pursuant to that entrapment, purchased drugs from B. At the trial of B the trial Judge refused to exclude evidence of B’s supply to A. The Supreme Court found that the refusal to exclude was correct. The Supreme Court stressed that in such cases there was no automatic exclusion and that there was a distinction between an unwary innocent (A) and an unwary criminal (B). Cases for exclusion of evidence must be treated in their individual context and the court did not exclude a flow-on effect were the facts different.

37 My conclusions extend the application of s138 to include a person who was not the direct victim (for want of a better word) of the illegality/impropriety. Yet such an extension is in my view correct in principle. It makes little difference at law if it is the victim who swears at or threatens an officer involved in an impropriety or illegality, or it is a bystander who intervenes. Applying Carr, the only difference is one of degree – that is that the intervening bystander may face a larger hurdle to satisfy the court that their actions were in consequence. The more serious or violent the intervention the harder this may be.

38 Section 84 of the Evidence Act reflects the common law position when it excludes an admission influenced by violent, oppressive, inhuman or degrading conduct,

…..whether towards the person who made the admission or towards another person.


Thus the law recognises that evidentiary exclusion is possible where the defendant is not the recipient of the conduct, but is influenced by it to make an admission.

Section 138(3) Matters

39 In assessing this balancing test the onus shifts to the prosecution. The question is whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained. It is necessary to consider each of the factors listed in s138(3). In doing so I am mindful that threats of a much more personal and serious nature were excluded in Robinett v Police SCGRG-00-110 [2000] SASC 405. In Robinett the words included the following to a female officer

"I will fucking kill you. I will bury the fat cow. I will get you Michelle and your husband. I will bury you, you fucking dog. I will rape the arse out of you and as for the rest of you ..."



In Carr the threats were also much more serious and also included an assault police charge.

40 Section138(a) and (b). The evidence is clearly of strong probative value and is important in the proceedings.

41 Section138(c). The offence is not victimless or minor and carries a maximum penalty of five years. However, there were no injuries sustained by the police officer and in similar circumstances threats were described as “the utterance of course threats by a moderately intoxicated man” and not serious or moderately serious: Carr at 69.

42 Section138(d)(e). The impropriety or illegality was, in my view serious. The maximum penalty for the original offence is a fine of $220. This indicates that the offence is at the lowest end of the criminal ladder - lower in fine than many traffic matters involving significant risk to the public. There are specific provisions for the issue of infringement notices for the offence. Arrest for such traffic matters is unheard of. This offence is not one where public safety is alleged to be at risk. Arrest for a matter where the maximum penalty is a fine is in a very special category. Mr Davis says that the arrest was for a short period of time. This is undoubtedly true. In the absence of lawful authority the deprivation of liberty of a child is a very serious crime. The child in question was aged 13. It was in the middle of the day. The child suffered the public humiliation of being arrested and placed in the rear of a caged truck.

43 This was more than merely a technical breach. It was inconstant with the view repeatedly expressed by the higher courts of this State as to what are regular, permissible standards of acceptable police conduct with respect to the decision to arrest. It was inconsistent with the legislative scheme for dealing with children for a minor offence. Further, it was inconsistent with the police guidelines as to appropriate use of the arrest power.

44 In its notes on this provision the ALRC referred to “the need to discipline by evidentiary exclusion”. Further the ALRC stressed the need to consider any pattern of misconduct.

“Taking the degree of seriousness of the misconduct into account carries with it the danger that law enforcement agencies may believe they can routinely commit minor breaches without suffering the consequences of evidentiary exclusion. One factor that a trial judge should take into account therefore is whether the breach is one example of a wider pattern of misconduct”

45 In Ridgeway (1995) 184 CLR 19 at 38 the High Court found that it was also relevant to consider whether the impropriety is

“tolerated or encouraged by those in higher authority in the police force”

46 I am not aware as to whether this case is representative of a wider pattern of misconduct. No evidence was presented to me of this. However, I note that Justice Smart in Carr (at p 35) found “the pattern in this case is all to familiar. It is time that the statements of this court were headed”.

47 Section 138(e). The ALRC commented

“ The fact that an individual officer acted under a mistaken, even reasonable belief as to facts or the law would not negate the deterrent effect of evidentiary exclusion…….Similarly, it is largely irrelevant to the criminal suspect that his rights were infringed deliberately or mistakenly”

In Carr the court found the impropriety was reckless where the officer

“carelessly disregarded both the use of the appropriate procedure and the possible consequences of the actions which he proposed to take and took when there were obvious and he must have realised these”

48 In this case the arrest was not the consequence of a reasonable belief as to facts or law – the arrest was in my view part of a battle of wills. The officer either must have realised or should have realised that the arrest would be likely to cause things to get worse not better.

49 Section 138(f). I have carefully considered the International Covenant, and in particular Article 9 relating to arbitrary arrest and Article 24 relating to the rights of the child. . Dictionary definitions of “arbitrary” include “high handed” and “on a personal whim, capricious”. In Fleet the court commented:

Nevertheless, it remains appropriate that those vested with extraordinary powers of arrest should be reminded of the need to consider whether they should be exercised in a particular case. The arrest in this case seems to have an element of the arbitrary about it, which brings to mind the tyranny Deane J warned against. Such cases are harmful to the free society we all want to preserve.”

50 In van Alphen v the Netherlands the Human Rights Committee found that the word arbitrary in Article 9(1) includes the concepts of “unproportional, unjust, unpredictable”. In that case they also found that remand in custody must be “reasonable and necessary in all the circumstances”. See Nowak, M “United Nations Covenant on Civil and Political Rights” NP Engel Press, Kehl, 1993, at p172.

51 There seem to be no Australian authorities on the definition of the term “arbitrary”. I have formed the view that the arrest in this case was arbitrary in the sense that it was unreasonable, unnecessary, disproportional and highhanded. It also seems to be arbitrary in the sense that the term was used in Fleet.

52 Section 138(g). I am unaware of whether any action against the officer for the improper/illegal arrest, either civil or criminal is being considered.

53 Section 138(h). Not relevant

54 Section 138(3) is not an exclusionary list, and there are other factors that I may take into account. One of these is the vulnerability of a particular person including their age and aboriginality: R v Helmhout [2001] NSWCCA 372. In this light the court in Robbinet [66] commented:

People arrested and in custody, even when intoxicated, are completely disempowered in their ability to command the services or even the respect that others in the community may be able to. They are likely to react to that disempowerment, and to any physical needs that may arise, in a variety of unpredictable ways. The situation is exacerbated when the person concerned is a member of an already socially disempowered section of the community, such as the Aboriginal community. The consequences of ignoring requests of that nature can be catastrophic.

55 The same could be said for those who are standing by when a child is arrested. In my view it is appropriate that I take into account that the young person was an aboriginal child – one of the most disempowered sections of the community.

Exclusion of the Evidence

56 I agree with the prosecution that there is a public interest in ensuring that police do not suffer intimidatory comments, particularly from bystanders. The courts must not be seen to condone this type of behaviour.

57 I agree with the defence that the impropriety/illegality was serious. I agree that there is a need for the courts, in particular the Local Court, to send a disciplinary message to the police that Supreme Court rulings and the handbooks directions that arrest is a last resort must not be ignored. This is especially when the arresting offence has a maximum penalty of a fine, and the detained person is a child.

58 Having carefully considered and balanced these issues I have come to the view that the prosecution has not satisfied me that the evidence should be admitted.

Execution of Duty

59 Lest I am incorrect in my conclusions regarding the admissibility of the evidence it is necessary to consider this substantive issue. The prosecution must satisfy me that the officer was acting in the execution of his duty. This is an element of the offence and there is no presumption that an officer is acting in the execution of his duty. If he is not, or if there is doubt as to the issue, the defendant should be acquitted. I note that there is a separate offence of Intimidation (ie not of a police officer) at s562AB Crimes Act 1900 the penalty for which is a maximum of 5 years also. Having elected to proceed with the s60 offence the prosecution must prove each element to the requisite standard.

60 One element is that the police were acting in the execution of their duty. In R v K 118 ALR 596 Gallop, Spender and Burchett JJ the court quoted the following passage with approval.

“It is important that the constable should have a wide discretion to act swiftly and decisively: it is equally important that the exercise of that discretion should be subject to scrutiny and control so that he should not too easily or officiously clothe himself with the powers of the State and by so doing affect the rights and duties of other citizens.”

The court then reviewed a wide range of cases in considering the concept of when an officer is executing his or her duty and concluded that

“a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with the functions as a police officer, and continues to act in the execution of his duty……provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein”

61 In most cases of course, strict proof that the officers were acting lawfully will not be necessary - an inference can easily be drawn. In this case I must be satisfied that the arrest was lawful. For the arrest to be lawful it must have been for the purpose established by statute and as per the interpreting cases.

62 Arrest for any other purpose is not lawful, and thus the officer in this case would not be acting in the execution of his duty. Bales v Parmeter (1935) 35 SR NSW 182, Williams (1986) CLR 278. In Pirani and Diggins v Hardy SC NSW Smart J 9 September 1984 the court found as follows:

“An arrest will not be within power unless it is effected in good faith and for the purposes contemplated by the enactment….the purpose of the acts done must be to vindicate and to give effect to the law”.

63 I have further dealt with the reasons I view the arrest as unlawful above. I rely on these reasons, cases and the factual conclusions drawn relating to the officers’ reasons for arresting the young person. In particular R v Merrit, [2002] Crim LN [1474] is most relevant.

64 Mr Davis contends that whatever the view of the arrest of the young person, the police officer had finished with that and had now returned to the task of moving the adults. He submits that analysis of the facts ought divide the incident into two discrete episodes.

65 Mr Smith rejects such a division as artificial and says that they were all part of the same episode. Even if the facts should be divided in the way suggested by Mr Davis, Mr Smith contends that the officers’ conduct was rooted in illegality in that the move-on requirements were not met with respect to the adults as well as the young person. Thus the officer was acting outside the ambit of his duty. If the matter is viewed as one episode, the unlawfulness of the arrest for the reasons discussed above, in addition to the difficulties with the move-on, should lead to acquittal of the defendant.

66 I tend to the view that it is indeed artificial to separate out the incidents. They were intimately related in terms of time and purpose. The purported duty was the moving-on of the group. The law was not followed in respect of the move-on. The law was not followed in the arrest. In my view there is doubt as to whether the officer was acting in the execution of his duty and accordingly the charge should be dismissed.