R v DB; R v AP

[2020] NSWDC 472

District Court

New South Wales

Medium Neutral Citation:

R v DB; R v AP [2020] NSWDC 472

Hearing dates:

5 August 2020

Decision date:

24 August 2020

Jurisdiction:

Criminal

Before:

DCJ Yehia SC

Decision:

In each case, the appeal is upheld. I set aside the orders of the Children's Court.

Catchwords:

CRIME – appeal and review – resist and assault police in execution of duty – appeal against findings that offences proved by Children’s Court

POLICE POWERS – power to arrest without warrant – requirements of s 99 LEPRA not met – arrest to be for purposes of commencing proceedings – no power to detain for investigation or questioning – principle that arrest is to be a measure of last resort – statutory presumption that criminal proceedings against children should be commenced without resort to arrest

POLICE POWERS – power to detain intoxicated persons – whether requirements of s 206 LEPRA met – meaning of “intoxicated” – detention of intoxicated minors where parent requests that police convey them home – multiple police officers taking a child to the ground and forcing him into a caged vehicle where object of legislation is said to be care and detention not arrest and charge

EVIDENCE – discretion to exclude evidence pursuant to s 138 Evidence Act 1995 – whether evidence obtained “in consequence of” an impropriety – whether police statements and body worn video obtained following period of unlawful detention improperly or unlawfully obtained

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 8

Evidence Act 1995 (NSW), s 138

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 105, 206

Cases Cited:

Al-Kateb v Goodwin (2004) 219 CLR 562

Alla v Gleeson (Supreme Court (NSW), 25 October 1985, Roden J, unrep)

ASIC v Macdonald (No 5) [2008] NSWSC 1169

Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219

Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151

Director of Public Prosecutions v SB [2020] NSWSC 734

Fleet v District Court [1999] NSWCA 363

Jankovic v Director of Public Prosecutions [2020] NSWCA 31

NSW v Robinson [2019] HCA 46

R v Dalley (2002) 132 A Crim R 169

R v Helmout (2001) 125 A Crim 257

Williams v R (1986) 161 CLR 278

Texts Cited:

Convention on the Rights of the Child, art 37(b)
International Covenant on Civil and Political Rights, arts 9, 24

Category:

Principal judgment

Parties:

Director of Public Prosecutions
AP
DB

Representation:

Office of the Director of Public Prosecutions
Children’s Legal Service, Legal Aid NSW (AP)
Rebecca Dunlop (DB)

File Number(s):

2019/00112829
2019/00107084

 Decision under appeal 

Court or tribunal:

Children's Court

Jurisdiction:

Crime

Date of Decision:

29 January 2020

Before:

Children's Magistrate Freund

File Number(s):

2019/00045090
2019/00107084

Judgment

1. DB appeals against a finding of guilt in relation to one offence that, on 5 April 2019, he resisted Sergeant Chapman, Senior Constable Wallbridge and Senior Constable Rose in the execution of their duty.

2. AP appeals against a finding of guilt in respect of two offences, namely, assaulting Sergeant Chapman while he was acting in the execution of his duty, and an offence of resisting Sergeant Chapman, Senior Constable Wallbridge and Senior Constable Rose while in the execution of their duty.

3. On 29 January 2020, Magistrate Freund, sitting in the Children’s Court, found the offences proved. The matter proceeded by way of the tender of a number of documents on the voir dire. Senior Constable Wallbridge was called to give evidence on the voir dire. The primary issue was whether the detention of the appellants was lawful. The Magistrate determined, in each case, that while the initial periods of detention were unlawful, the secondary period of detention was justified in the circumstances. Following further brief submissions, each offence was found proved.

Appeals before the District Court

4. Before I turn to the evidence, it is important to say something about the nature of conviction appeals.

5. The appeal is to be by way of rehearing on the Local Court transcripts, supplemented by any exhibits tendered. A Judge hearing a conviction appeal is to form his or her own judgement of the facts so far as able to do so, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the Court below.

6. While I accept that a District Court Judge is bound to observe the “natural limitations” where the appeal is conducted by reference to the documentary record, this is not a case where the findings made by the Children’s Court Magistrate involved a determination about the credibility or reliability of witnesses. Much of the evidence was adduced by way of the tender of statements. One police officer was called and cross-examined. This is not a case where the “natural limitations” that sometimes exist in the hearing of an conviction appeal, apply.

7. The case instead turns upon the question of whether these young persons were lawfully detained at the time they committed the acts which are alleged to constitute the offences.

The Evidence

8. Before I turn to the legal principles and an analysis of the evidence applying those legal principles, I will summarise the evidence. I do not intend to reiterate every piece of evidence but will simply summarise the pertinent evidence.

9. The appellants were 15-year-old children at the time of the allegations. On 5 April 2019 at about 7:40pm, there was a job broadcast on the police radio reporting five people physically fighting at Hornsby Railway Station. Senior Constables Wallbridge and Rose and Sergeant Chapman arrived at the location, where they were approached by a witness who gave a description of young males wearing grey hoodies and black spray jackets as having assaulted a young female.

10. Sergeant Chapman and Senior Constable Rose got out of the police vehicle and started to run to the far end of the concourse. Senior Constable Wallbridge was approached again and told “that’s another one there”, in reference to the young person AP. AP was wearing navy blue long pants and a navy blue shirt. The officer explained to AP that he needed to speak to him about an allegation of an assault that had occurred earlier.

11. The officer’s statement records that the young person was immediately argumentative and appeared to be heavily affected by either drugs or alcohol. He claimed that AP was unable to put a sentence together and could not understand simple instructions that he was being given. It was at that point the officer activated his Body Worn Video. I will set out my own observations having viewed that footage, in due course.

12. AP repeatedly asked the police officer why he was being detained and what he had done. He indicated that he had to catch the train to go home. Senior Constable Wallbridge told AP to stop swearing and that he had to stay with police until police finished investigating what had occurred. At that time, AP was seated on the ground. He was swearing in the context of asking repeatedly why he was being detained.

13. Senior Constable Wallbridge observed Sergeant Chapman walking along with the other young person, DB. The officer, in his statement, records that DB was yelling and swearing. DB could be heard on the footage saying: “I am calm, he is tugging on me, I am not doing anything fucking wrong. Let fucking go of me, cunt”.

14. Sergeant Chapman was not called to give evidence in the hearing. In his statement dated 7 June 2019, he said that he pursued DB on foot, locating him lying flat on the ground in a garden talking on a mobile phone. Sergeant Chapman told DB to get up, at which time the young person responded by saying: “fuck off, I’ve done nothing wrong”. The officer took hold of the young person and said: “I believe you have been involved in an assault upon a female. You are under arrest”. DB responded: “fuck off, I’ve done nothing”. He attempted to walk away when he was taken hold of by the officer who started to walk him toward the railway station.

15. DB yelled at the officer on a number of occasions, saying that he had done nothing wrong. He was pushed up the stairs and along the concourse by Sergeant Chapman, towards the other police officers who were standing with AP. Sergeant Chapman recorded in his statement that he placed DB into the rear of the caged police vehicle due to his aggressiveness.

16. Senior Constable Wallbridge, in his statement, said that while being placed in the back of the police vehicle, DB said: “I have done nothing fucking wrong. I’ve done nothing illegal”.

17. During the time that DB was held in the police vehicle on the first occasion, Senior Constable Wallbridge and Sergeant Chapman had a conversation about contacting the young persons’ parents to arrange to have them taken home. DB was released from the vehicle. Clearly, the arrest was discontinued at this stage. However, he was not allowed to leave the scene.

18. Police explained to DB that they were going to take him home to his grandparents due to his intoxication. He told police initially that he had nothing to drink and then said that he had “a little bit to drink.”

19. When it was explained to him that the police would be taking him home to his grandparents’ place due to his “intoxication”, DB responded that he would just come back out later.

20. Senior Constable Wallbridge explained to the other young person, AP, that police were going to take him home to his grandparents. AP responded by saying: “why the fuck are we going home? What have we done? Give me a solid reason on why we are going home?”

21. Sergeant Chapman grabbed AP’s arm and said: “we are going to run you home”. AP asked: “why do you gotta run us home?” Sergeant Chapman responded: “because we don’t trust you, don’t resist. If you resist you will be arrested.”

22. The prosecution case is that AP was going to be given a move-on direction however he appeared to be unsteady on his feet and a decision was made to run him home instead. Senior Constable Wallbridge and Sergeant Chapman took hold of AP and led him towards the police vehicle. AP struggled with police, attempting to break free from their hold. He was placed in the police caged vehicle. It is his actions in struggling with the police as they attempted to place him in the police vehicle, that constitute the allegation of resist police.

23. Prior to DB being released from the police vehicle on the first occasion, his mother was contacted by police. She can be heard in the Body Worn Camera footage requesting that her son be taken to his grandparents.

24. Senior Constable Rose, in his statement, stated that DB ran towards police with his arms raised. He further stated that he grabbed hold of DB and took him to the ground in an attempt to stop him from running at police. He held the young person on the ground. The officer states that the young person continued to resist until the other officers were able to assist. He was placed in the rear of the caged vehicle.

25. At the commencement of the proceedings I asked the Crown to particularise the act or acts relied upon in respect of each offence. In relation to the young person DB, the resist police charge relates to the allegation that he struggled with the police as they were placing him in the rear of the caged truck. There is no charge relating to DB allegedly running towards police with his arms raised.

26. While both young persons were inside the caged truck, they were yelling and swearing and kicking the side of the truck. Upon arrival at Hornsby police station and when AP was being taken out of the back of the truck, it is alleged that he lunged towards Sergeant Chapman. This is the conduct constituting the allegation of assault police.

The Body Worn Camera Footage

27. Exhibit B, in these proceedings, is a disc containing police Body Worn Camera (BWC) footage of about 30 minutes in duration. I have viewed that footage several times. I will now set out my findings in respect of that footage.

28. AP appears on the footage to be unsteady on his feet. He sat down on the ground, turning out his pockets, and was quiet for a number of minutes, before asking if he would be allowed to catch his train home [video timestamp 19:43:21]. I am satisfied that he appears to be under the influence of an intoxicating substance. I am unable to determine if that substance was alcohol or an illicit drug or both.

29. The police officer told him that he is “not going anywhere”, and “you’re being detained at the moment”. AP asked what he was being detained for and was told “because at this moment I am not sure if you’ve been involved in an assault” [19:43:30]. AP denied being involved in an assault.

30. During the footage, AP repeatedly asked police for an explanation as to why he was being detained and why he was not being allowed to catch the train home. At 19:47:10, he was told by the officer “until I clear everything up, you’re not going anywhere”. AP again asked “what have I done?” and the officer responded “mate, I’m not explaining it to you again, I’ve already told ya.” AP complied with a direction to take his bag off so the police could search it. He was asked if he has had consumed alcohol to which he responded that he had not.

31. AP became increasingly agitated and began to swear, saying “I’ve gotta fuckin’ catch the train soon”. AP asked a number of times, as he became increasingly agitated, why he was being detained by police. However, he did not get up from the ground, threaten violence, or attempt to leave the scene. At about 19:48:37, AP is heard swearing when asking police: “what have I done? I wasn’t causing trouble”. The police officer told AP that police have to investigate the matter.

32. At around 19:50, DB was put in the back of a caged vehicle. He is heard on the footage asking why he was being put in the back of a police wagon and “what have I done wrong?” He repeated that he has done “nothing wrong, nothing illegal”. This was the first occasion on which DB was placed in the police vehicle.

33. DB asked Senior Constable Walbridge what he was going to charge him with. The officer responded that he was not going to be charged. Clearly, at this time, when DB was in the police vehicle having been earlier told that he was under arrest for assault, there was no intention to charge him with a criminal offence.

34. At 19:51, AP was still sitting on the ground while his bag was being searched by police. He is depicted in the footage repeatedly asking: “what am I doing here? What have I done wrong?”. The police officers became increasingly frustrated with him and repeated that they had already explained why he was being detained, essentially because they were investigating an allegation of “assault between your mates”. He was told to “shut up – be quiet”.

35. At 19:52:49, AP was asked his name. He provided his name and spelled it. He provided his date of birth and address, continuing to ask what he had done. Notwithstanding his intoxication, he was able to respond to these questions in a coherent manner.

36. Senior Constable Wallbridge responded to AP, saying: “I’m not going to explain it to you again, I’ve already explained it to you a number of times”. AP had not been told at any point that he was under arrest for any offence. The only explanation given was that he was being detained for the purpose of investigation, which the Crown concedes constitutes an unlawful detention.

37. At 19:53:55, Senior Constable Wallbridge said to AP “stay off the drugs mate and you won’t have a problem”, then shortly after told another officer “he’s too high on something” to listen to the explanation for his detention being provided by police. AP was told “you’ll be getting a fine in the mail for swearing in a public place”. AP responded: “I’m not swearing in public, I’m just trying to get an answer”.

38. At 19:54:21, Senior Constable Wallbridge said to AP, “I’ve already explained it to you three times now, I’m not explaining it to you again. If you’re too stupid to hear what I’m saying because you’re too high on drugs, that’s your fault … you’ve got no common sense … if your brain cells have all been disintegrated because of the drugs, that’s your fault”. AP continued to ask “what have I done?” and was told “we’ve already told you” by another police officer. He responded: “you haven’t told me”. He repeated the question and added: “I’m being serious”. The police are audibly exasperated in the BWC footage.

39. By this time, AP had become increasingly agitated. He was told that he was going to be taken home. When he continued to ask police why he was being detained, he was told that the police originally detained him in respect of an alleged assault because he had been pointed out by a member of the public. However, it appears that at about this time, the police formed the view that AP was being detained because he was intoxicated and requested the phone number of one of his grandparents [at 19:57:29].

40. At 19:58, the police opened the back of the caged vehicle and released DB. Having viewed the footage, I am satisfied that DB was coherent. Police advised him that he was initially detained essentially in respect of the allegation of assault in the park.

41. At 19:58:40 in the footage, DB can be heard beginning to deny any involvement, but he complied when asked to listen to the police officers’ explanation. He denied being intoxicated. DB provided his address, his mother’s mobile telephone number and name. He asserted his rights by asking why he had been grabbed and forced into the back of the police van. He was told he was stopped and placed in the vehicle because he was “carrying on like a pork chop”. DB responded “can I explain to you, though, when you start grabbing me, and I know that I’ve done nothing wrong, you’ve grabbed me and forced me into the back of the police wagon, do you think that I’m going to be all happy and shit about that?”

42. DB was instructed to put his shoes on and get out of the vehicle. He asked whether he was being released. He denied having anything to drink, then conceded that he had had a little bit to drink. He informed the police that his mother was in Bathurst and that he was staying at a friend’s house. Although it appears that at one stage he lost his balance in the back of the caged vehicle, he had no difficulty putting on his socks and shoes. He was told that he was not being charged with anything but was still detained. Police then spoke to DB’s mother over the phone. She provided them with an address for his grandparents. It became apparent that he was not free to leave.

43. At 22:04, DB was told “you’re intoxicated and in a public place, under 18”. He asked, “how am I intoxicated?” Senior Constable Wallbridge stated: “mate, you’ve just admitted to us you’ve had drinks”, to which DB responded “doesn’t mean I’m intoxicated”. He walked over to AP, who had remained with the other police officers on the concourse during this intervening period.

44. AP is depicted in the footage standing up, swearing and continuing to ask what he had done wrong. AP told police that DB did not need to be taken home and had only had two drinks. At 20:06:05, Senior Constable Wallbridge told him to “shut up” and DB came to AP’s aid by telling the officer, “don’t tell him to shut up”. AP was told he would be taken home and that if he resisted, he would be arrested.

45. At about 20:07:20, AP was taken hold of by police and placed in the back of the police vehicle. He appears in the footage to be struggling with police at that time. At about 20:07:32, the footage shows DB on the ground being restrained and handcuffed by three police officers. He is struggling with them and swearing at that point.

46. I am satisfied, having viewed the footage, that AP was affected by an intoxicating substance. I am not, however, satisfied that DB was intoxicated in the sense contemplated by s 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’). While he may have had “a little bit to drink”, he was not unsteady on his feet. He was coherent and asserting his rights. Indeed, there appears to be an inconsistency between the statements of the police officers in their assessment of DB’s degree of intoxication. Sergeant Chapman described DB as appearing to be “well affected by alcohol or drugs” whereas Senior Constable Rose described him as “moderately affected by intoxicating liquor”.

27. I am not satisfied that this young person was intoxicated as defined in Part 16 of LEPRA (see s 205, which will be discussed below).

28. The allegations of resisting police in the execution of their duty relate to the acts of each young person in struggling with the police as they were being placed in the back of the caged police vehicle. In respect of the assault police charge laid against AP, the prosecution has particularised the conduct relied upon as occurring once the police vehicle arrived at Hornsby police station and police tried to take AP out of the back of the truck, whereupon AP allegedly lunged towards Sergeant Chapman.

Evidence of Senior Constable Wallbridge

49. Leading Senior Constable Wallbridge was the only officer to give evidence in the Children’s Court proceedings. His statement was tendered on the voir dire, as were the statements of Senior Constable Rose and Sergeant Chapman.

50. In relation to the initial detention of AP, the officer gave the following evidence: [T 11: 1–32]

Q: And you said also in paragraph 11 of your statement, in response to [AP] asking why - what he had done, you said “it was explained to [AP] that he was to stop swearing and he had to stay with police until we had finished investigating what had occurred?

A: Yes

Q: So at that point in time you’ve stopped him and you’ve got him sitting down on the ground, taking a seat while you work out what is happening. You’re still very much investigating –

A: Yes, yep.

Q: And no intention at that point in time to charge him with anything?

A: With nothing.

Q: So detained in order to investigate –

A: Investigate yep.

Q: Because you didn’t even have a victim?

A: No, no the witnesses had pointed out two females, but I couldn’t get the females, who were alleged victims, but I’d already had [AP] in custody.

Q: So he was, clearly detained, not free to leave while you investigated-

A: Exactly, yep.

Q: Then it was several minutes into your interaction with young person [AP] that you asked for his identification?

A: Yes.

Q: So you certainly realised prior to asking him for his ID that you were dealing with a juvenile?

A: Yes.

Q: He looked well under 18?

A: I’d spoken to [AP] previously for minor offences on the rail network, so I knew he was under 16.

51. In relation to DB, Senior Constable Wallbridge gave the following evidence:

Q: You saw him [Sergeant Chapman] walking along with the young person [DB]?

A: Yes.

Q: And [DB] wasn’t in cuffs?

A: No.

Q: But clearly detained?

A: He was being held by Sgt Chapman on the - by the right arm.

Q; In fact when you saw the approach, you directed Sgt Chapman to place young person [DB] in the back of the van?

A: I can’t recall whether it was I or Sgt Chapman said to put him in the back of the van because of his actions at the time, either one of us said we put him in the back of the truck.

Q: And again, still investigating this assault in the park?

A: Yes.

Q: No intention by you or your colleagues is to charge him with anything?

A: Not to arrest, no no.

Q: We’re talking about now …

A: Not until we’d investigated what had happened, no.

Q: So [DB] also under arrest to investigate?

A: Yes.

52. The officer agreed that he told DB that he was not getting charged with anything and further agreed that neither young person was charged with any assault arising from the incident in the park. Senior Constable Wallbridge admitted that he was aware that DB was under the age of 16.

Respective Submissions

53. It is an element of each of the offences that the relevant officer was at the time of the alleged offence acting in the execution of his duty. The primary issue in the proceedings is the lawfulness of the detention in each case.

Submissions on behalf of DB

54. DB contends that his detention by police was unlawful and that the prosecution has not established a necessary element, namely that the police were acting in a lawful execution of duty. Alternatively, it is submitted that the evidence relied upon by the Crown to establish the offence should not be admitted into evidence pursuant to s 138 Evidence Act 1995 (NSW).

55. DB submits that it is well settled the police do not have a power to detain a person for the purpose of investigation. Having regard to the evidence, it is further submitted that police had no intention of charging DB with an offence when he was detained in the rear of the police van. Instead, he had been detained while police investigated what, if any, involvement he had had in the earlier incident.

56. DB was released from the police van before being further detained, purportedly pursuant to s 206 of LEPRA.

57. DB contends that the requirements of s 206 were not met and that his detention purportedly pursuant to that power was therefore unlawful. He submits that the prosecution cannot establish that he was intoxicated and cannot establish that he was behaving in a disorderly manner or in a manner likely to cause injury to himself or another person or damage property or that he was in need of physical protection as a result of his intoxication.

58. In the alternative, and regardless of whether the detention pursuant to s 206 was justified or not, it is submitted that the resist charge arose within minutes of the young person being released from unlawful detention, and that the evidence should be excluded pursuant to s 138 of the Evidence Act.

59. While the evidence objected to is accepted as important in the proceedings, the illegality or impropriety is said to be grave, demonstrating a disregard for the rights of the child to be at liberty and free from unlawful arrest. Ultimately, DB contends that having discharged the onus placed upon him to establish an illegality or impropriety, the prosecution has not discharged its onus that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

Submissions on behalf of AP

60. AP contends that the evidence clearly establishes that his initial detention was unlawful, the police having admitted that he was being detained for the purpose of investigation. The Crown accepts that the initial detention of AP was unlawful having regard to the concessions made by the police that he was being detained for the purpose of investigating whether an assault had taken place.

61. AP further contends that the secondary detention on the basis of his intoxication was also an unlawful exercise of police powers because, at the time he was detained by police, he was not behaving in any manner that could be described as disorderly or dangerous to himself, others or property. While he was being argumentative with police and questioning the reason for his detention, that behaviour alone could not be described as disorderly, particularly in circumstances where the police were exceeding their powers. Furthermore, the evidence does not establish that AP was in need of physical protection because of his intoxication.

62. The primary submission is that the police were not acting in the lawful execution of their duty. The initial detention was unlawful because it clearly contravened s 99 of LEPRA. The second period of detention was also unlawful because the requirements of s 206 were not met. Alternatively, that all of the evidence sought to be relied upon to establish the offences with which AP is charged was obtained subsequent to, and as a result of, the initial period of unlawful detention and therefore should be excluded.

63. Emphasis has been placed on the gravity of the contravention and Article 9 of the International Covenant on Civil and Political Rights (‘ICCPR’) which recognises the inherent right of the individual to personal liberty. The gravity of such violation is said to be aggravated by AP’s position of vulnerability as a child. In the circumstances, I am urged to exclude the evidence which flows from the unlawful detention.

Crown submissions

64. The Crown accepts that the initial period during which AP was detained was unlawful having regard to the evidence that he was detained for the purpose of investigation. The Crown does not make the same concession in respect of DB’s initial period of detention, in light of the evidence that Sergeant Chapman placed DB under arrest having formed a reasonable suspicion that the young person had perpetrated, or was involved in, an assault.

65. In each case, the Crown acknowledges that the acts relied upon to constitute the offences are alleged to have been committed, not during the initial period of detention, but during a period in which each young person is said to have been detained pursuant to s 206 of LEPRA.

66. The Crown concedes that, if the detention of each young person is found not to be lawful pursuant to s 206 of LEPRA, then the officers were not otherwise at the relevant time acting in the execution of their duty.

67. The Crown submits that on the basis of the BWC footage, coupled with the descriptions of the police witnesses, I would find that both young persons were relevantly “intoxicated” for the purposes of the section.

68. The object of the legislation is said to be care and detention, not arrest and charge. The Crown submits that at the relevant time of detention, it had been determined that both young persons were in need of care due to the degree of intoxication they displayed. The Crown further submits that the behaviour of each young person amounted to behaviour that causes a disturbance or annoyance to others or a breach of decorum which tends to disturb the peace and interfere with the comfort of other people.

Legislative Framework and Relevant Principles

69. Before I set out my findings, it is necessary to set out the legislative framework and relevant principles against which I have conducted the analysis of the evidence and arrived at my findings.

Power to arrest without a warrant

70. The power of police to arrest a person without a warrant is largely, although not solely, governed by the provisions of LEPRA.

71. Section 99 provides:

99 Power of police officers to arrest without warrant

(1) A police officer may, without a warrant, arrest a person if—

(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—

(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv) to ensure that the person appears before a court in relation to the offence,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person arrested),

(ix) because of the nature and seriousness of the offence.

(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.

(3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.

Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer—see section 105.

(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.

(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.

72. The first statutory precondition for a lawful arrest pursuant to s 99 is that the arresting officer has formed a reasonable suspicion that a person is committing or has committed an offence. The second is that the arrest must also be reasonably necessary for one or more of the reasons enumerated in s 99(1)(b)(i)–(ix).

73. It is well established that an arrest must be for the purposes of commencing proceedings: NSW v Robinson [2019] HCA 46. Police do not have a power to detain a person for the purpose of investigation or questioning: Williams v R (1986) 161 CLR 278.

74. The relevant principles relating to the correct construction of s 99 can be found in the judgment of Bell, Gaegler, Gordon and Edelman JJ in NSW v Robinson:

[109] … To comply with the requirement in s 99(3) immediately upon arrest, a police officer must at the time of arrest have an intention to take the person, as soon as is reasonably practicable, before an authorised officer to be dealt with according to law to answer a charge for that offence. If there is no intention to comply with the requirement in s 99(3), the arrest is unlawful. And a requirement for the police officer to have an intention to bring a person before an authorised officer means, as a matter of substance, a requirement to have an intention to charge that person.

[110] Thus, an arrest under s 99 can only be for the purpose, as soon as is reasonably practicable, of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for that offence. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with the crime is an arrest for an improper purpose and is unlawful.

[111] Section 99(1)-(3), in its terms, does not alter that single criterion for a lawful arrest that has been the law in New South Wales since at least 1933. … The intention required at the time of arrest is an intention to charge unless it emerges after the arrest that the circumstances do not justify such a decision. As s 105 provides, discontinuing the arrest may mean that the person is dealt with in some other manner pursuant to s 105(2)(b).

[112] This is reinforced by the terms of Pt 9, which concerns investigations and questioning. The Part applies to a person who is under lawful arrest by a police officer for an offence. It expressly provides that it does not confer any power to arrest, or detain, a person who has not been lawfully arrested. Put in different terms, absent a lawful arrest under s 99, Pt 9 has no operation. If there is a lawful arrest, a police officer may "detain" a person for the investigation period. Part 9 has operation only when there has been a lawful arrest and, then, subject to the protective procedures and provisions in Pt 9. Section 114(4) provides that the person must be released within the investigation period or brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period. That protection is in addition to that provided for under s 99(3), which, subject to the investigation period, remains a duty of the police officer – that is, as soon as practicable, to take the person before an authorised officer to be dealt with according to law.

75. In Jankovic v Director of Public Prosecutions [2020] NSWCA 31, Barrett AJA (with whom Macfarlan JA agreed) considered the necessary state of satisfaction of an arresting officer in the context of an arrest without warrant pursuant to s 99 of LEPRA:

[53] For an arrest without warrant to be authorised by LEPRA, s 99(1), it must be established that, as described in s 99(1)(b), the arresting officer was “satisfied” that the arrest was “reasonably necessary for” any one or more of the “following reasons” stated in the section. An issue as to the officer’s state of mind arises; and it is for the party asserting that the arrest was authorised by the section to show that, at the time of making the arrest, the officer had reached a state of being “satisfied” that the circumstances as a whole made it “reasonably necessary”, for one or more of the stated reasons, that the person concerned be deprived of their liberty.

[54] The party asserting the lawfulness of the arrest must thus prove that the police officer had formed a particular opinion (or state of satisfaction) about the connection, in terms of cause and effect, between depriving the person of their liberty and achieving the results with which the “following reasons” are concerned. The connection is defined by the words “reasonably necessary”.

76. Finally, it is has been long recognised by the courts that arrest is to be a measure of last resort: Fleet v District Court [1999] NSWCA 363 at [73]–[74]; Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151 (‘DPP v Carr’) at [35]; Director of Public Prosecutions v SB [2020] NSWSC 734 at [50]–[55].

77. The legislature has recognised this principle in respect of children, in particular: s 8 of the Children (Criminal Proceedings) Act 1987 (NSW) creates a presumption that criminal proceedings against children should be commenced without resort to arrest.

Discontinuing arrest

78. Section 105 of LEPRA provides:

105 Arrest may be discontinued

(1) A police officer may discontinue an arrest at any time.

(2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances—

(a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason,

(b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997.

(3) A police officer may discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law.

Detention of intoxicated persons

79. Part 16 of LEPRA sets out the statutory powers of NSW Police officers relating to the detention of intoxicated persons.

80. Section 206 creates a discretionary power to detain a relevantly intoxicated person found in a public place. The section is set out as follows:

206 Detention of intoxicated persons

(1) A police officer may detain an intoxicated person found in a public place who is--

(a) behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or

(b) in need of physical protection because the person is intoxicated.

(2) A police officer is not to detain a person under this section because of behaviour that constitutes an offence under any law.

(2A) However, a police officer may detain an intoxicated person under this section even if behaviour constitutes an offence under section 9 of the Summary Offences Act 1988 if the detention is not for the purpose of taking proceedings for the offence.

(3) An intoxicated person detained by a police officer under this Part is to be taken to, and released into the care of, a responsible person willing immediately to undertake the care of the intoxicated person.

(4) An intoxicated person detained by a police officer under this Part may be taken to and detained in an authorised place of detention if—

(a) it is necessary to do so temporarily for the purpose of finding a responsible person willing to undertake the care of the intoxicated person, or

(b) a responsible person cannot be found to take care of the intoxicated person or the intoxicated person is not willing to be released into the care of a responsible person and it is impracticable to take the intoxicated person home, or

(c) the intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling the intoxicated person.

(5) An intoxicated person detained under this Part may be detained under such reasonable restraint as is necessary to protect the intoxicated person and other persons from injury and property from damage.

(6) This section does not authorise a responsible person into whose care an intoxicated person is released to detain the intoxicated person.

81. There is no issue that the appellants in the present case were both found in a “public place”.

82. The term “intoxicated person” is defined in s 205 of LEPRA as “a person who appears to be seriously affected by alcohol or another drug or a combination of drugs” (emphasis added). In light of the word “seriously” in the definition, and the much wider range of conditions which might normally be covered by the word “intoxicated”, it is desirable that there be a specific finding (in proceedings where it is in issue) as to the degree to which a detained person was affected: Alla v Gleeson (Supreme Court (NSW), 25 October 1985, Roden J, unrep) at 4.

83. The Crown submits that, on the basis of the BWC footage and the statements of the police witnesses, the Court would find that both young persons were relevantly “intoxicated” for the purpose of the section.

84. In order for the power of detention under s 206 to be enlivened, the person being detained must be behaving in a disorderly manner; behaving in a manner likely to cause injury to themselves, another person or to property; or in need of physical protection because the person is intoxicated.

85. Disorderly conduct has been held to be behaviour which causes disturbance or annoyance to others present: E (a Child) (1994) 13 WAR 1; 76 A Crim R 343; or any substantial breach of decorum which tends to disturb the peace or interfere with the comfort of other people: Barrington v Austin [1939] SASR 130.

86. In Alla v Gleeson at 9–10, it was held that there was no proper basis for finding that the detained person in that case was behaving in a disorderly manner when he refused to leave the foyer of a police station after being asked to do so and proceeded to “weave” down a corridor not open to the public. Having found that the detention was unlawful, the Court quashed the conviction of the plaintiff for the alleged assault of a police officer acting in the execution of their duty.

Consideration

87. I now turn to an analysis of the evidence applying the principles enunciated above. I intend to analyse and set out my findings in respect of each case separately because there are differences in the evidence. Before I do so, I pause to note the following.

88. Firstly, I acknowledge that police officers are regularly called upon to deal with potentially volatile situations in circumstances where they must make split-second judgements.

89. Secondly, the power to arrest or detain an individual, whether an adult or a child, is strictly circumscribed for good reason. Fundamental rights and freedoms can only be abrogated by clear words. In exercising the judicial function, courts seek to give effect to the will of the Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language: Al-Kateb v Goodwin (2004) 219 CLR 562.

90. Thirdly, the power to detain where the object of the legislation is care and detention, not arrest and charge, is still subject to carefully crafted restrictions so as to maintain a balance between a necessity to ensure the safety and protection of the individual and good public order on the one hand and the fundamental importance of an individual’s liberty on the other. The fact that the individual is under 18 years of age and intoxicated, even where a relative asks police to convey that child home, is not, without more, a basis for exercising the powers conferred by s 206 of LEPRA.

Was DB lawfully detained?

91. Was the initial period of detention lawful? Put another way, was DB arrested because Sergeant Chapman suspected on reasonable grounds that the young person had committed an offence and was satisfied that arrest was reasonably necessary for one of the reasons set out in s 99(1)(b)? Furthermore, did Sergeant Chapman arrest DB with the intention of charging him and taking him, as soon as reasonably practicable, before an authorised officer to be dealt with according to law?

92. Sergeant Chapman and Senior Constable Rose chased DB and another young person. Sergeant Chapman located DB in a garden bed. He placed him under arrest saying: “I believe you have been involved in an assault upon a female. You are under arrest”.

93. Senior Constable Wallbridge was cross-examined in the proceedings. In respect to the young person, DB, the officer gave evidence that DB was placed under arrest for the purposes of investigation. When asked whether it was his intention or the intention of his colleagues to charge DB with anything, he responded: “not to arrest, no no.” However, he was not the arresting officer. Sergeant Chapman was.

94. Sergeant Chapman was not cross-examined in the proceedings. His statement was tendered on the voir dire without challenge. Having regard to this lacuna in the evidence, it is difficult to make any considered determination about what Sergeant Chapman’s state of mind was at the time that he first placed DB under arrest.

95. The learned Magistrate determined that at the time of the initial arrest by Sergeant Chapman, when he was located in the garden bed, taking the evidence of Sergeant Chapman at its highest, the arrest was lawful at that point. However, by 8:02pm when the officer in charge, Leading Senior Constable Wallbridge was having discussions with DB, the detention was no longer lawful because there was no intention to charge him at that point.

96. The evidence of Senior Constable Wallbridge appears to establish that at the time DB was placed in the police vehicle on the first occasion, there was no intention on the part of any of the police officers to charge him with anything: [T12:10]. He was placed in the police vehicle on the first occasion notwithstanding the fact that there was no intention to charge him with an offence at that point. It follows from this point that the arrest was unlawful.

97. Further, I am not persuaded that the police were acting lawfully in detaining DB pursuant to s 206 of LEPRA. I have had the benefit of watching the BWC footage, which extends over a relatively lengthy period. While DB may have had “a little to drink”, he was not in my view “intoxicated” and certainly not seriously intoxicated in the way contemplated by s 206 of LEPRA.

98. As indicated above, although he did swear on occasion, DB was coherent. He was able to provide police with information. His speech was not slurred. He asserted his rights and questioned police about his detention but his behaviour did not demonstrate “intoxication”. The requirements of s 206 were not met, and the police exceeded their powers by detaining DB without a lawful basis.

99. It follows, therefore, that the police were not acting in the lawful execution of their duty when they detained DB on the second occasion, being the occasion during which he is alleged to have resisted the police officers.

100. Accordingly, an essential element of the offence has not been established. In the alternative, the evidence relied upon to establish the allegation, is excluded pursuant to s 138 of the Evidence Act. I will address this issue more fully below.

Was AP lawfully detained?

101. The Crown has conceded that the initial period of detention in relation to AP was unlawful pursuant to s 99 of LEPRA. The concession is inevitable in light of the evidence of Senior Constable Wallbridge that AP was initially detained for the purpose of investigation.

102. That is not the end of the matter. Was AP’s second period of detention lawful pursuant to s 206 of LEPRA?

103. Having observed the BWC footage, I am satisfied that AP was under the effects of an intoxicating substance. I am also prepared to find that he was “intoxicated” as contemplated by s 206 of LEPRA. However, for his detention to be lawful, it is not sufficient that he was an intoxicated person found in a public place. The provision requires that, before police can detain an intoxicated person found in a public place, he or she must be behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage property or is in need of physical protection because the person is intoxicated.

104. When AP was initially detained by police, he was standing still on a public area of the train station. He was not conversing with anyone or behaving in a manner that could be described as disorderly or dangerous to himself or others, or to property.

105. Over the course of the initial period of detention, AP cooperated with police requests for his identification details, and complied with directions to turn out his pockets and to allow police to search his bag. He repeatedly questioned police as to the reason for his continued detention.

106. As his detention continued, a detention that was at least initially unlawful, he became argumentative with police and began to swear in the context of repeatedly asking the police why he was being detained. I am not persuaded that this behaviour in itself can be categorised as disorderly conduct. The swearing took place in the context of repeatedly asking questions about his detention. He did not attempt to get up off the ground. He did not display any physical violence or aggression. He did not engage in any conduct that could be perceived as placing others or property at risk.

107. Although on occasion his words were slurred, he was able to articulate his personal information and comply with demands to turn his pockets out and hand over his bag.

108. This is not a case where AP was behaving in an aggressive or violent manner to himself, others or property. While I am persuaded that he was an intoxicated person found in a public place, I am not persuaded that he was behaving in a disorderly manner or in a manner likely to cause injury to himself, another person or property or that he was in need of physical protection because of his intoxication.

109. Alternatively, I am of the view that AP’s conduct both in terms of being argumentative and his subsequent behaviour (relied upon as constituting the offences) was a direct result of his initial unlawful detention. Had he not been detained for the purpose of investigation, his behaviour would not have escalated.

110. The concept of evidence obtained in consequence of an improper arrest was considered in Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151 (‘DPP v Carr’), where it was held that evidence of the defendant’s conduct, which allegedly amounted to resisting, assaulting and intimidating police, was obtained in consequence of an improper arrest. It was noted that unnecessary and improper arrests are almost bound to cause an escalation of the situation, and that there was a strong causal link between the arrest and the defendant’s conduct.

Court’s discretion to exclude improperly or illegally obtained evidence

111. The appellant’s primary position is that the entire evidentiary basis of the Crown case was obtained in consequence of the initial period of unlawful detention in each case and is therefore inadmissible pursuant to s 138. Any second period of detention, even if it were lawful, would not break the consequential chain.

112. Essentially, if s 138 is enlivened, the evidence obtained in consequence of that detention (including statements and footage describing or depicting the offences) is inadmissible.

Was the evidence obtained improperly or illegally, or in consequence of an impropriety or contravention of the law?

113. The term “improperly” is not defined under s 138. In DPP v Carr, the Court upheld orders of the Local Court excluding evidence of alleged offences of resisting police, assaulting police, and intimidating police in execution of their duty. The evidence was obtained in consequence of an arrest which was found to amount to an impropriety for the purposes of s 138 because it was carried out in circumstances where a summons would have been sufficient, and appropriate. The fact that the arresting officer failed to observe the principle of arrest as a measure of last resort amounted to the relevant impropriety. At [35], Smart JA observed:

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 arrest and assaulting the police. The pattern in this case is all too familiar.

114. In Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219, the Court considered that evidence obtained “in consequence of” an impropriety or contravention of law for the purposes of s 138 could take the form of evidence that “might be expected to follow from certain conduct” (at [83]). His Honour Hall J made the following observations: (emphasis added)

(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.

115. For the reasons set out above, I am satisfied in each case that the initial period of detention was unlawful. In the case of AP, the initial period of detention was unlawful from the outset. In the case of DB, although at the point of arrest his detention may have been lawful, by the time he was placed in the caged vehicle on the first occasion, he was not lawfully detained because there was no intention to charge him. Alternatively, when the arrest was discontinued, DB was detained unlawfully because the requirements of s 206 of LEPRA were not satisfied.

116. I am satisfied that in each case the appellants have discharged their onus pursuant to s 138(1). The conduct relied upon to constitute the offences occurred after the unlawful detention of the appellants and was intimately related to that detention and therefore obtained in consequence of it. The alleged offences stemmed from the unlawful detention of the appellants. There was clearly a close link between that unlawful detention and their subsequent conduct.

Does the desirability of admitting the evidence outweigh the undesirability of admitting evidence so obtained?

117. Section 138 requires the Court to balance the desirability of admitting the evidence against the undesirability of admitting it because of the manner in which it has been obtained. Section 138(1) provides:

(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.

118. Section 138(3) prescribes a non-exhaustive list of factors that are to be taken into account by the Court in deciding whether it should exercise its discretion to admit evidence that was improperly obtained. These factors include: the probative value of the evidence; the importance of the evidence in the proceeding; the nature of the relevant offence; the gravity of the impropriety or contravention; whether the impropriety or contravention was deliberate or reckless; and the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

119. No preponderance is ascribed to any of the matters identified in s 138(3) over others; each, if applicable, is to be weighed in the balance in favour of or against the exercise of discretion: ASIC v Macdonald (No 5) [2008] NSWSC 1169 at [27].

120. The probative value and importance of the evidence in the proceedings is significant. Essentially, the evidence the subject of the objection constitutes all of the evidence giving rise to the allegations.

121. The offences cannot be categorised as trivial offences. In each case the allegations relate to resisting and assaulting police officers. That said, there is a greater public interest in the conviction and punishment of those guilty of crime where the crimes are of greater gravity: R v Dalley (2002) 132 A Crim R 169.

122. The gravity of the impropriety is significant. In my view, the gravity of the impropriety here is greater than the impropriety in DPP v Carr (in which the evidence was excluded) for two reasons: first, that AP and DB are children, and therefore vulnerable persons; and second, that, unlike Mr Carr, the appellants were not engaged in any unlawful conduct that would have justified even the issuing of a summons (or Court Attendance Notice) at the time of the second period of detention.

123. Furthermore, because the detention of the appellants was not justified, at least in the first instance, and they were deprived of their liberty in a manner contrary to law, their detention amounts to a violation of their right to liberty as recognised by Article 9 of the ICCPR. The gravity of such violation is aggravated by their position of vulnerability as children.

124. Section 138(3)(f) requires the court to take into account whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the ICCPR. Article 9 is set out as follows:

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

125. I make the observation that Article 24 of the ICCPR also recognises the right of “all children … to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

126. Noting that s 138(3) does not constitute an exhaustive list of the only factors that may be taken into account, I note that Australia is also a signatory to the United Nations Convention on the Rights of the Child. Article 37(b) of that Convention provides that “[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”

125. The legislature of this State has recognised that the detention of a young person is not in the best interests of the young person. So much is clear from the enactment of statutory provisions which provide guidelines for the exercise of powers of arrest and detention in relation to children, such as s 8 of the Children (Criminal Proceedings) Act 1987 (NSW) which emphasises that arrest is to be a measure of last resort in the commencement of criminal proceedings against children.

126. There is no question that police officers, in carrying out their duties, frequently find themselves in situations in which they must exercise rapid decision-making, judgement and discretion to apprehend conduct which compromises the safety and well-being of members of the public and the community at large.

127. It is for this reason that police are granted extraordinary powers to commit acts against ordinary civilians that, absent lawful justification, would constitute conduct that attracts tortious or criminal liability: e.g. powers to stop and search persons in public places, to require persons to move along, to use reasonable physical force against civilians and to deprive persons of their liberty.

128. Particularly where vulnerable persons are concerned, police are at times required to strike a delicate balance in exercising their discretionary powers to appropriately fulfil their functions and serve the State of New South Wales. So much is evidenced by s 206 of LEPRA itself. Section 6 of the Police Act 1990 (NSW) provides that one of the functions of the NSW Police Force is “to provide police services for New South Wales”, and defines “police services” expansively to include not only the prevention and detection of crime, but also emergency services and “the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way”.

129. It is troubling in this case that, in seeking to protect these young people by detaining them so as to then release them into the care of a responsible person, police physically took hold of them and forcibly placed them in a caged police vehicle. In the case of DB, he was taken to the ground and physically detained by more than one police officer.

130. In recognition of the extraordinary nature of the powers granted to police, both the common law and the legislature have imposed various safeguards against the arbitrary and unjustified exercise of such powers. One example comes in the form of the strict preconditions for the lawful exercise of the power of arrest without a warrant, as prescribed by s 99 of LEPRA. Another example can be found in the safeguards contained in Part 15 of LEPRA which require, among other things, a police officer exercising a relevant power to provide the reason for its exercise to the person subject to the exercise of the power (see s 202).

131. I note the insistence of the courts that police are to be held to a higher standard than members of the public, and that abuses of their power are to attract significant sanctions (see, eg, R v Nguyen (2004) 149 A Crim R 343; R v Chapman (21 May 1998, NSWCCA, unrep). The purposes of LEPRA are to restrict the exercise of power by police in recognition of the position of power they enjoy over the citizenry; and to enumerate their responsibilities to safeguard the rights of individuals with whom they interact.

132. There are no other proceedings, nor are there likely to be other proceedings taken, in relation to the impropriety or contravention. There are, for instance, no disciplinary proceedings on foot against the police officers.

133. The impropriety or contravention was not deliberate. There is no clear approach in the authorities to the concept of “reckless”. In some instances, it has been held that “reckless” requires a serious disregard of the relevant procedures amounting to a deliberate undertaking of the risk that the rights of the suspect will be substantially prejudiced: see, eg, Director of Public Prosecutions v Nicholls (2001) 123 A Crim R 66.

134. It has also been held that the fact that an officer was possibly not as familiar as he ought to have been about the requirements of the law would not be sufficient to establish recklessness. In R v Helmout (2001) 125 A Crim 257, Hulme J observed that, in the context of s 138, the concept of “reckless” must involve some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or, alternatively, a “don’t care” attitude generally.

135. The preponderance of authority appears to confirm that there must be the deliberate undertaking of a risk of illegality or impropriety. In this case I cannot make a finding that the impropriety or contravention was deliberate or reckless.

136. Rather, it appears that the impropriety or contravention was inadvertent. The police appear not to have been familiar with the requirements of the law. While I acknowledge that, where the illegality or impropriety was a result of the mistaken belief that a police officer was entitled to do what he or she did, this would tend to reduce the seriousness of the misconduct, it must also be recognised that there is an onus on police officers to familiarise themselves with the legislative provisions which confer power upon them, particularly where that power entitles them to interfere with the liberty of an individual.

137. There is simply no justification for a failure to educate police officers in their powers and responsibilities. Ignorance about such powers and the way in which they must be exercised does not necessarily negate the deterrent effect of evidentiary exclusion. The infringement has still occurred. Rights have still been infringed. Damage has been sustained regardless of the mental element of the officer.

138. Where evidence has been obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law, the evidence 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. I am far from being persuaded that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

139. Accordingly, had I not been of the view that the police officers were not acting in the lawful execution of their duty during the second period of detention, I would have excluded the evidence pursuant to s 138 of the Evidence Act.

140. It follows that, in each case, the appeal is upheld. I set aside the orders of the Children's Court.

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Decision last updated: 25 August 2020