Davis v R

Conviction appeals from the Local to the District Court

1. Before I turn to the evidence it is important to say something about the nature of conviction appeals.
2. 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 proceedings.
3. 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.
4. Further, a judge of this Court is not precluded from referring to the reasons for decision of the Local Court Magistrate and the findings of the Magistrate as to the credibility of witnesses, recognising their natural advantage in having seen and heard the witnesses given in the Court below. However, particularly in circumstances 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. 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 independent assessment of guilt: Lunney at [34]. Relevantly, the extent to which a review of transcription of materials is required is qualified and shaped by the matters put in issue: Lunney at [4], [43] - [44].
5. 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) and 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.
6. Findings of fact based on the credibility of the witness are susceptible to being set aside where incontrovertible facts or uncontested testimony demonstrate a finding was erroneous, or if there are factual findings that are glaringly improbable or contrary to compelling inferences in the case.
7. The duty of the appellate court is to decide, 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 the Court is satisfied that it was some respect wrong: McNab at [90].

Elements of the offence

1. In order to be satisfied that the appellant is guilty of the 60(1AA) offence the Court must be satisfied beyond a reasonable doubt that he: 1. Resisted SC Lees 2. While SC Lees was executing his duty as a police officer.

Onus and standard of proof

1. The Crown has the task of proving the appellant's guilt beyond reasonable doubt.
2. There is no onus on the appellant at all. He has absolutely nothing to prove at any stage of the proceedings. He 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 him.

The evidence

1. The evidence consisted of the oral evidence of SC Lees on 20 February 2024, his statement dated 10 August 2023 (Ex A) and the in-car video (Exhibits B & C).
2. Although SC Lees set out the conversation he had with the appellant in his statement, a comparison with the recording on the in-car video reveals that quite a lot of dialogue is missing. Additionally, much of the missing dialogue is difficult to hear, as both SC Lees and the appellant speak very quickly and are at a distance from the recording device. This is especially so with the appellant, who for much of the exchange remains seated in his car.
3. Taking into consideration what can be heard from the In-Car Video recorded by SC Lees' police vehicle and from his statement, in essence, although not compendiously, after SC Lees became aware of the positive result from the drug test, he told the appellant: "Alright, positive for Cannabis, we have to go back to Grafton is that alright, let's go." I note this is not quite consistent with the statement of the officer and is what I heard from repeatedly listening to the footage.
4. The appellant refused to get out of the car, initially telling the officer he would drive his partner and baby home first. Officer Lees adamantly tells him that he is not going to do that and is not going anywhere. Officer Lees repeatedly told the appellant to get out of the car. The appellant does not comply.
5. During this stand off SC Lees removed the keys from the ignition of the appellant's car. The appellant's partner can be seen to get out of the car and make a phone call. Eventually, the appellant gets out of the driver's side of the car. Dialogue between him and SC Lees continues.
6. The appellant then helped assemble the pram. SC Lees waited patiently. The appellant tells SC Lees he'll be making a complaint about harassment. SC Lees looks exasperated.
7. The appellant then removed the baby in her bassinet from the vehicle and fits it to the pram. He opens the boot of the car. Throughout this, SC Lees waits nearby.
8. The footage cuts out. When it resumes, everyone is off camera to the left of the vehicle.
9. After everyone is out of view and moments before the appellant is handcuffed and subdued, SC Lee's statement records: [11] I have observed the accused and his partner for the next few minutes assemble a pram so the accused's partner could take the young child. A short time later I have observed the accused to walk with his partner towards the footpath in a northbound direction, I have walked behind the accused for a period of ten metres. [12] He said: "You can fuck off you fat pig, get fucked you gronk."
10. Referring to the in-car footage and recording, on my repeated listening SC Lees then says: "Excuse me? Are you ready? Let's go." The appellant was restrained and handcuffed immediately after this.
11. High pitched voices can then be heard, but the origin of those is not clear. It is apparent that moments later the appellant is placed into the police car, as it can be seen to rock slightly and then move away.
12. In his statement SC Lees said that he took hold of the appellant to handcuff him and the appellant became argumentative, hostile, irritable, restless, quarrelsome and abusive, raising his fists. SC Lees stated that he grabbed the appellant by his left arm and observed him to resist arrest. I accept that this is what occurred.
13. After using weaponless control to arrest the appellant, Officer Lees walked him to the highway patrol vehicle. The appellant collided with the rear door of the vehicle as he is said to have resisted getting in the car. The appellant lunged forward to exit the vehicle and, fearing the appellant may assault him, SC Lees used both hands to push the appellant downwards into the seat, colliding with the appellant's lower jaw region. The appellant is said to have continued to be argumentative, hostile, irritable, restless, quarrelsome and abusive.

Legislation

1. Clause 7 Schedule 3 of the Road Transport Act 2013 is as follows: Clause 7 Arrest following failed oral fluid test or refusal or inability to submit to test. A police officer may exercise the powers referred to in subclause (2) in respect of a person if-- it appears to the officer from one or more oral fluid tests carried out under clause 6(1) by the officer that the device by means of which the test was carried out indicates that there may be one or more prescribed illicit drugs present in the person's oral fluid, or the person refused to submit to an oral fluid test required by an officer under clause 6(1) or fails to submit to that test in accordance with the directions of the officer. 2) A police officer may-- a. arrest a person referred to in subclause (1) without warrant, and b. take the person (or cause the person to be taken) with such force as may be necessary to a police station or such other place as the officer considers desirable and there detain the person (or cause the person to be detained) for the purpose of the person providing oral fluid samples in accordance with clause 8, and c. if clause 9 permits the taking of a blood sample from the person--take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a prescribed place and there detain the person (or cause the person to be detained) for the purpose of the person providing such a blood sample in accordance with clause 9.
2. Part 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) imposes safeguards or prerequisites on the powers of police officers.
3. In particular, s 201(1) (a) and (b) state that the power to stop, search or arrest a person or stop or search a vehicle are subject to the mandatory safeguards in s 202 of LEPRA.
4. The relevant part of sections 202 and 204A read: 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 204A Validity of exercise of powers (1) A failure by a police officer to comply with an obligation under this Part to provide the name of the police officer or his or her place of duty when exercising a power to which this Part applies does not render the exercise of the power unlawful or otherwise affect the validity of anything resulting from the exercise of that power. (2) Subsection (1) does not apply if the failure to comply occurs after the police officer was asked for information as to the name of the police officer or his or her place of duty (as referred to in section 202(5)). (3) Subsection (1) does not apply to the exercise of a power that consists of a direction, requirement or request to a single person.

Conclusions of the Local Court Magistrate

1. Mr Prowse LCM noted that the appellant had initially refused to get out of his car as requested to do so by SC Lees after the positive test. His Honour noted that the appellant was aware that SC Lees wanted to take him to Grafton Police Station. (T6.20)
2. His Honour considered that SC Lees effected the arrest immediately after the appellant had said to him "you can fuck off you fat pig…" (T7.05) He noted that SC Lees was empowered to arrest by way of Clause 7 Schedule 3 of the Road Transport Act 2013. He rejected the appellant's submissions that the arrest was arbitrary.
3. His Honour accepted it was preferable that SC Lees expressly inform the appellant that he was under arrest (T9) however the appellant's abusive statements were what prompted the officer to arrest him. (T9.50)
4. His Honour noted that at common law it is sufficient that by words and conduct the arresting officer makes it plain to the person being arrested that he is no longer a free man. R v Inwood [1973] 2 All ER 645 (his Honour incorrectly referred to R v England) His Honour concluded that the arrest was lawful and thus SC Lees was acting in the execution of his duty.

Submissions

1. The Crown submitted that the appellant was aware he was being placed under arrest because the roadside drug test returned a positive reading for cannabis and SC Lees stated (as I have found he said): "Alright, positive for cannabis, we have to go back to Grafton. Is that alright, let's go."
2. The Crown noted that, in accordance with Clause 7(2)(b) of Schedule 3 of the Road Transport Act 2013, the police have power to use any 'necessary' force in arresting someone for the purposes of secondary testing.
3. The Crown submitted that it was clear that the appellant was under arrest because of the words spoken, SC Lees' action in removing the keys from the appellant's vehicle and his subsequent action of placing his hands on the appellant to effect the arrest.
4. The appellant submitted that the requirement to comply with or submit to an arrest arises only upon the arrest being lawful.
5. The appellant submitted that s202 of LEPRA was not complied with. The appellant asserts that it is unclear when the arrest began, if at all, and that SC Lees words of "Excuse me? Are you ready? Let's go." (as I have found them) uttered immediately before the end of the recording, were not sufficient to be accepted as words of arrest.
6. The appellant submits that as SC Lees did not comply with the mandatory LEPRA requirements, he was not acting in the execution of his duty and as a result, the appellant could not have been resisting an arrest, as the arrest was not lawful.

Consideration

1. SC Lees had the power, in his capacity as a police officer, to arrest the appellant without warrant, in accordance with cl 7 sch 3 of the Road Transport Act 2013 and s 99 LEPRA.
2. The appellant knew he was not free to leave and that SC Lees' intention was to take him to Grafton Police Station for a further test regarding the positive result of the random fluid test. It was also apparent to him that he could not drive his car. SC Lees made this clear both verbally and by his actions in removing the key from the ignition.
3. Unlike a case such as Christie v Leachinsky [1947] AC 573, there was no risk that the appellant failed to appreciate the reason behind his interaction with SC Lees, even though initially SC Lees did not attempt to arrest him or explain, consistent with S202 (1) of LEPRA, the reason for the exercise of the power. It was clearly because of SC Lees' intent to have the positive test reviewed at Grafton Police Station and to charge the appellant if it was confirmed.
4. Turning to the conditions of s 202(1) LEPRA. SC Lees was in his uniform and driving a police vehicle, so s 202(1)(a) is met.
5. Neither the Crown or the appellant assert that SC Lees gave his name or place of duty. On the facts before me, SC Lees does not state his name or place of duty at any stage during his interaction with the appellant. He should have.
6. The failure of SC Lees to comply with the obligation to give his name and place of duty will not render the exercise of power unlawful or effect the validity of the arrest. See s 204A LEPRA. I note that in this case it is apparent from the exchange between the appellant and SC Lees that they knew one another from an earlier occasion when the appellant had been pulled over by SC Lees when driving (T.3.30). That's not to say that the appellant knew SC Lees' name.
7. LEPRA requires that a police officer intending to arrest a person in the circumstances that pertain here must inform the person of the reason for the exercise of the power. For the purposes of s 201 of the Act, "the power" SC Lees was at some point purporting to exercise was the power to arrest.
8. Despite engaging in an extensive dialogue with the appellant after the positive drug test, SC Lees did not inform him that he was under arrest so that he could be taken to Grafton Police Station for further testing. Although he takes the appellant's car keys and tells him he is going to be going to Grafton for a further test,he did not move to restrain the appellant when he finally got out of the car and instead waited, patiently, whilst the appellant assembled the baby's pram, retrieved the baby and her bassinet from the back seat of the car and connected it to the pram. The appellant then opened the boot of the car.
9. I am satisfied that from the point when SC Lees returned to the appellant's car with the positive drug test, the appellant knew he was not free to leave and he knew why. SC Lees had expressly told him so and had removed his keys from the ignition of the car. SC Lees waited until the appellant's partner and baby were ready to go home by another means. Despite this delay, it was obvious that the appellant was to be taken by SC Lees to Grafton Police Station for the further test. The appellant must have known this.
10. I'm not convinced that to the point when the appellant finished putting his child into the pram he was under arrest or that he considered that he was. The absence of an express statement by SC Lees to this effect left the situation ambiguous. Although it was accepted at the hearing that s99 of LEPRA entitled SC Lees to arrest the appellant should he consider it appropriate, the appellant cannot be taken to have known this. An available inference, in the absence of an express statement by SC Lees, was that the appellant was expected to co-operate and go with the Officer, with the possibility of arrest if he did not comply.
11. Eventually, by his actions and verbal abuse, the appellant communicated to SC Lees his intention to not co-operate. It was these last actions of the appellant that resulted in SC Lees restraining and handcuffing him and exercising the power of arrest (T.4.01).
12. In Christie v Leachinsky [1947] AC 573 it was said at 588:
13. "The person arrested cannot complain that he has not been supplied with the above information as and when he should have, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away."
14. See also R v Dungay [2007] NSWCCA 443 at [11], and NSW v Riley (2003) 57 NSWLR 496 at [11], [19] - [26], [2003] NSWCCA 208 [76] - [80], [83] - [84]
15. It was the appellant's conduct in defying SC Lees and walking away that prompted SC Lees to arrest him.
16. In my assessment, SC Lees' actions in restraining and handcuffing the appellant at the end of their interaction beside the roadway were lawful. Any ambiguity in the situation was made clear when the appellant verbally abused the officer and walked away from him. At that moment, the exigency of the situation did not require the officer to expressly state that the appellant was under arrest or explain the reason for the exercise of the power, before arresting him.

Determination

1. For these reasons I uphold the decision of the learned Magistrate and dismiss the appeal.

Amendments 18 September 2024 - Paragraph numbering updated. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2024