Rainbow v The King

[2024] NSWDC 632

District Court

New South Wales

Medium Neutral Citation:

Rainbow v R [2024] NSWDC 632

Hearing dates:

30 July 2024

Date of orders:

6 August 2024

Decision date:

06 August 2024

Jurisdiction:

Criminal

Before:

D Barrow SC DCJ

Decision:

The appellant’s conviction appeal is allowed.

The convictions for the charges of Hinder Police in the Execution of Duty and Assault Police in the Execution of Duty are quashed.

In lieu, the appellant is not guilty regarding both charges.

Catchwords:

CRIME - Criminal law and procedure – appeal from the Local Court to the District Court – all grounds – Conviction appeal - Hinder Police in Execution of Duty and Assault Police in Execution of Duty – whether police officer was acting in his duty – Conviction appeal allowed – Appellant not guilty

Legislation Cited:

Law Enforcement (Powers and Responsibilities) Act 2002

Crimes (Appeal and Review) Act 2001

Crimes Act 1900

Cases Cited:

Lunney v DPP [2021] NSWCA 186

McNab v DPP (NSW) 2021 106 NSWLR 430

R v Wong [2022] NSWDC 257

R v King (1993) 118 ALR 596

Halliday v Neville [1984] HCA 80, 155 CLR 1

Entick v Carrington (1765) 19 St Tr 1029

Great Central Railway Co v Bates (1921) 3 KB 578

Category:

Principal judgment

Parties:

Director of Public Prosecutions
Appellant (Ms Rainbow)

Representation:

For the Director of Public Prosecutions:
Ms N Breward, Solicitor

For the appellant:
Mr J Fahey, Solicitor

File Number(s):

2023/00292111

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Grafton

Date of Decision:

2 May 2024

Before:

Magistrate R Prowse

File Number(s):

2023/00292111

JUDGMENT

Appeal against conviction

1. Ms Rainbow, who I will call “the appellant”, was convicted on 2 May 2024 at the Grafton Local Court of the following offences:

1. hindering a police officer in the execution of his duty, contrary to s60(1AA) of the Crimes Act

2. assaulting a police officer in the execution of his duty, contrary to s60(1) of the Crimes Act

2. The appellant was convicted and fined $1000 for the hindering offence. She was convicted without further penalty for the assault police officer offence.

Conviction appeals from the Local to the District Court

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

4. Conviction appeals from the Local Court to the District Court are made pursuant to Pt 3 Div 1 of the Crimes (Appeal and Review) Act 2001 (“Appeal and Review Act”). This appeal is brought pursuant to s 18 of the Appeal and Review Act, which provides that the appeal is to be conducted as a rehearing on the basis of the evidence in the original Local Court proceedings.

5. There have been a number of recent intermediate decisions on the approach to be taken by the Court hearing the appeal from the Local Court: Lunney v DPP [2021] NSWCA 186 and McNab v DPP (NSW) 2021 106 NSWLR 430 (McNab) as were recently helpfully summarised by Abadee DCJ in R v Wong [2022] NSWDC 257 at [5] – [9]. Those cases affirm that this Court’s jurisdiction to intervene and set aside a conviction is enlivened upon the demonstration of error, whether the error is to be found in the fact-finding exercise, the identification of the law, the application of the law, or in exercising a discretionary power. Further, a judge of this Court is not precluded from referring to the reasons for decision of the Local Court Magistrate and to the findings by the Magistrate as to the credibility of evidence, recognising their natural advantage in having seen and heard the witnesses given in the Court below. However, particularly in circumstances of cases where one person’s word is pitched against another, that task may involve considering whether disputed evidence is consistent with incontrovertible facts, undisputed facts and other relevant evidence.

6. The appeal is not considered to be a de novo rehearing. Error is established by the manner in which the appellant grounds their appeal and there is no requirement that the Judge on appeal in this Court undertake a freestanding review of all the evidence in the absence of guidance and submissions from the parties. The appellate court is not obliged to review the whole of the record of the proceedings for an independent assessment of guilt: Lunney at [34]. Relevantly, the extent to which a review of the record is required is qualified and shaped by the matters put in issue: Lunney at [4], [43] – [44].

7. The approach of a judge in this Court is to form his or her own judgment of the facts (recognising the advantages of the magistrate). A judge may consider but is not bound by the magistrate’s reasons, including the resolution of issues of witness credibility and is not required to give weight to the magistrate’s advantage if it considers that the magistrate misused their advantage as the trial judge seeing and hearing the witnesses.

8. Findings of fact based on the credibility of a witness are susceptible to being set aside if incontrovertible facts or uncontested testimony demonstrate the finding was erroneous or if factual findings are glaringly improbable or contrary to compelling inferences in the case.

9. The duty of the appellate court is to decide the case, the facts as well as the law, for itself. If this Court is not satisfied beyond reasonable doubt of the appellant’s guilt then error will be taken to have occurred. The decision of the Local Court will not be overturned unless a judge of the Court is satisfied that it was some respect wrong: McNab at [90].

Appeal documentation and evidence

10. The material relevant to the appeal included the transcript of the evidence of the Local Court hearing, the reasons of the learned magistrate, the video taken from Constable Kim’s body worn camera, various Court Attendance Notices and related documents regarding an individual named Kayo Skinner, together with further evidence on the appeal: body worn footage from Constable Maharaj, who had been unavailable on the day of the hearing. The parties agreed the further evidence was admissible on the appeal.

The evidence

11. On 13 September 2023 Senior Constable Kim and Constable Maharaj went to the appellant’s home. They did so because Senior Constable Kim had been directed to do so by Senior Constable Travis Paul (T4.08; 5.15) who had told him that Kayo Skinner was possibly at that address.

12. During the Local Court hearing, the prosecutor tendered the above-mentioned Court related documentation regarding Mr Skinner, who had been charged with criminal offences arising from events unrelated to this appellant, that had allegedly occurred on 2 April 2023. Those documents refer to Mr Skinner being bailed to reside at the appellant’s home between 10 July 2023 and 28 November 2023. It is not apparent from the evidence that Senior Constable Kim knew this. All he knew was that Mr Skinner was wanted for an alleged breach of bail and was possibly at the appellant’s home.

13. Senior Constable Kim’s evidence was that upon arriving at the appellant’s home:

“I knocked….. someone answered and I saw Kayo Skinner … by the kitchen and I spoke to him.”

14. Officer Kim said he had activated his body worn camera before he knocked on the door. (T6.18) Someone had answered:

“it was one of the Rainbows I think ….”

15. Officer Kim’s evidence regarding the above matters was incorrect. He had not activated his body worn camera before knocking on the door, he had not knocked on the door at all, and contrary to his evidence, he opened the door to the appellant’s home himself. No one opened the door for him.

16. Officer Kim’s evidence was that he then asked Mr Skinner to come to the front door. Mr Skinner refused. Officer Kim told him he was to be arrested for breaching his bail. Mr Skinner then ran out of the house through the back door.

17. Consequently, Officer Kim then quickly moved through the house to try and catch Mr Skinner. Whilst attempting to do this, the appellant came between him and Mr Skinner and with her two hands, physically stopped him. These two actions gave rise to the two criminal charges. The appellant’s actions were captured on Officer Kim’s body worn footage.

18. Mr Skinner appears to have successfully evaded the police. Later that evening, after failing to locate Mr Skinner, the police arrested the appellant. She cooperated with police as directed.

19. In his cross-examination, Officer Kim insisted he had knocked on the front door. (T17.15) Contrary to his evidence in chief, he agreed he had opened the screen door and the main door himself. (17.20) He had turned the handle and pushed the door open. He had not sought permission to enter the house or to open the door and had not announced his name or the reason for him being there. (T17.30-45) He agreed that until he had opened the door, he had not seen Mr Skinner at the appellant’s home.

20. In re-examination Officer Kim was asked:

Q: “Did you knock on that door?” He replied: “I believe I did that yes.”

Q: “And what happened?” A: “There was no answer.”

21. Officer Kim had moved away from his evidence in chief that the door had been opened by one of the occupants of the house, however he continued to maintain that he had knocked before opening the door.

22. Officer Kim’s evidence is plainly incorrect. This is apparent when the body worn footage of his colleague Constable Maharaj is viewed.

23. The facts are, as outlined on behalf of the appellant: Senior Constable Kim walked up to the front door. It was closed but not locked. He did not knock before opening the door. He did not seek permission prior to opening the door. He did not announce his entry prior to opening the door. No one capable of giving permission, gave him permission to open the door and no one answered or opened the door other than him. At the time he did so he could not see inside. Contrary to his evidence, his body worn camera was not activated until after the door was opened and he was standing at the doorway looking directly into the appellant’s house.

24. I do not know whether Senior Constable Kim’s evidence was deliberately false. It may have been, or it may simply have been mistaken. I am confident that this was not the only occasion that Constable Kim has participated in an event like this case.

25. In the Local Court proceedings, Officer Maharaj was unable to attend. The prosecution had sought an adjournment; however, this was immediately refused by the learned magistrate.

26. Had Officer Maharaj’s body worn camera footage been available, his Honour could not have accepted the evidence of Officer Kim that he had knocked, because the body worn footage establishes without a doubt that he did not.

27. In the Local Court, the appellant’s submission was that Officer Kim had not acted in the course of his duty, given that by failing to knock and opening the door himself he had trespassed. He also failed to provide his name, place of duty or reason for the exercise of the power of entry.

Decision in the Local Court

28. After reviewing cases detailing what measures were necessary for a police officer to enter premises without a warrant, his Honour noted that absent exigency, an officer is required, before entry, to:

1. give notice of his presence by knocking or ringing the doorbell,

2. notice of his authority, by identifying himself as a law enforcement officer, and

3. notice of his purpose, by stating the lawful reason he had for entry.

29. The learned magistrate accepted Senior Constable Kim’s evidence that he had knocked on the door. (T26.40) As he was in full police uniform, Senior Constable Kim had also identified himself as a law enforcement officer. (T26.44) As he had not sought to enter the premises, there had been no need for him to provide notice of his purpose, by stating a lawful reason for entry. Entry only occurred because of Mr Skinner running away. This was an exigency as referred to in the authorities, that entitled him in those circumstances to enter the appellant’s premises.

30. During the Local Court hearing, the learned magistrate considered R v King (1993) 118 ALR 596 where it was held:

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

31. The learned magistrate rejected the submission made on the appellant’s behalf that there had been an effective or constructive breaking by Senior Constable Kim when he opened the door. T27.39 He considered this was the case “especially as Senior Constable Kim said that he knocked on the door and somebody answered and in cross examination Senior Constable Kim said that he opened the door.”

Case law and legislation

(a) Relevant legislation

Law Enforcement (Powers and Responsibilities) Act 2002 NSW

201 Police powers to which this Part applies

This Part applies to the exercise of the following powers by police officers—

(c) a power to enter or search premises,

202 Police officers to provide information when exercising powers

(1) A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power—

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power.

(2) A police officer must comply with this section—

(a) as soon as it is reasonably practicable to do so, or

(b) in the case of a direction, requirement or request to a single person—before giving or making the direction, requirement or request.

(b) Cases

32. The Court was referred to a number of cases, going back far as the case of Semayne [1572] Eng R 333, where the following requirements for entry of a private residence were stipulated:

“In all cases when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the King’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.”

33. In Halliday v Neville [1984] HCA 80, 155 CLR 1 Brennan J (in dissent as to outcome) observed, per Entick v Carrington (1765) 19 St Tr 1029 at 1066:

“ …. every invasion of private property, be it ever so minute, is a trespass.”

34. His Honour quoted from Great Central Railway Co v Bates (1921) 3 KB 578:

“in view of the limitations that have been laid down over and over again as to the right of a Constable to force a door, and as to the limitations of his powers unless he has a warrant, or in the case of a felony, it appears to me quite impossible to suggest, merely because Constable may suspect there is something wrong, that he has a right to enter a dwelling house either by opening a door or by entering an open door or an open window and go into the house ….”

35. Justice Brennan at [5] observed that an officer is not acting in the course of duty once he becomes a trespasser.

36. In Plenty v Dylan [1991] HCA 5, 171 CLR 635 the High Court considered whether a police officer, without the consent of an occupier, could enter private property so as to serve a summons. The facts of the matter are different to the situation here. The case involved civil litigation arising in South Australia. Justices Gaudron and McHugh observed:

“The common law has a number of exceptions to the general rule that a person is a trespasser unless that person enters premises with the consent, express or implied, of the occupier. Thus, a constable or a citizen can enter premises for the purpose of making an arrest if a felony has been committed and the felon has been followed to the premises. A constable or citizen can also enter premises to prevent the commission of a felony, and a constable can enter premises to arrest an offender running away from an affray. Moreover, a constable or citizen can enter premises to prevent a murder occurring. In these cases there is power not only to enter premises but, where necessary, to break into the premises however, it is a condition of any lawful breaking of premises that the person seeking entry has demanded and been refused entry by the occupier……” [5]

37. In R v K (1993) 118 ALR 596 it was held that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer and continues to act in the execution of that duty as long as he is engaged in the task provided he does not do anything outside the ambit of his duty so as to cease to be acting there in.

Onus and standard of proof

38. The Crown has the task of proving the appellant’s guilt beyond reasonable doubt.

39. There is no onus on the appellant at all. She has absolutely nothing to prove at any stage of the proceedings. She is entitled to the presumption of innocence. That presumption remains in place unless or until the Crown rebuts that presumption by proving beyond reasonable doubt each element of the offences alleged against her.

Disposition

40. The factual basis for the learned magistrate’s conclusion that Officer Kim was acting in the course of his duty is completely undermined by the further evidence from the body worn camera footage ftaken by Constable Maharaj.

41. Contrary to his sworn evidence, Senior Constable Kim made no attempt to knock on the door of the appellant’s home or seek permission to enter. Instead, he simply opened the door and stood in the doorway, looking directly into the living room of the appellant’s home. By doing so he committed a trespass. In doing so he was not acting in the execution of his duty. See Brennan J in Halliday v Neville [1984] HCA 80, 155 CLR 1 at [5].

42. Accordingly, I am not satisfied beyond reasonable doubt that Senior Constable Kim was acting in the execution of his duty when he entered the appellant’s home. For this reason, an essential element in relation to both offences is not made out.

Orders

43. The appellant’s conviction appeal is allowed.

44. The convictions for the charges of Hinder Police in the Execution of Duty and Assault Police in the Execution of Duty are quashed.

45. In lieu, the appellant is not guilty regarding both charges.

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Decision last updated: 04 February 2025