Director of Public Prosecutions (NSW) v Horwood

Supreme Court of NSW|2009-11-30|Before: Fullerton J

CITATION : Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447 This decision has been amended. Please see the end of the judgment for a list of the amendments.

The order of Holdsworth LCM made on 4 June 2009 at Newcastle Local Court dismissing proceedings commenced against the defendant for the offence of failing/refusing to disclose his identity on request, pursuant to s 12 of the Law Enforcement (Powers and Responsibilities) Act 2002, is set aside. 2. The order of Holdsworth LCM made on 4 June 2009 at Newcastle Local Court dismissing proceedings commenced against the defendant for the offence of resisting a police officer in the execution of his duty, pursuant to s 58 of the Crimes Act 1900, is set aside. DECISION : 3. Both the matters are remitted to the Local Court to be dealt with according to law. 4. The defendant is to pay the plaintiff's costs of these proceedings. 5. I direct that a certificate issue under s 6 of the Suitors' Fund Act 1951.

Crimes Act 1900 Crimes Legislation Amendment (Police and Public Safety) Act 1998 Crimes (Local Courts Appeal and Review) Act 2001 LEGISLATION CITED : Director of Public Prosecutions Act 1986 Evidence Act 1995 Interpretation Act 1987 Law Enforcement (Powers and Responsibilities) Act 2002

CASES CITED : A v Boulton (2004) 136 FCR 420

PARTIES : Director of Public Prosecutions (Pl) Matthew John Horwood (Def)

SOLICITORS : Solicitor for Public Prosecutions (Pl) I Bruce (Def)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/14540 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v MATTHEW JOHN HORWOOD

JUDGMENT 1 HER HONOUR: By summons dated 22 September 2009 the Director of Public Prosecutions appeals from a decision of Holdsworth LCM dismissing proceedings brought against the defendant for the offences of failing or refusing to disclose his identity on request contrary to s 12 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") and resisting a police officer in execution of his duty contrary to s 58 of the Crimes Act 1900. 2 Although the proceedings were prosecuted in the Local Court by a police prosecutor the Director of Public Prosecutions has since taken over the proceedings under s 9 of the Director of Public Prosecutions Act 1986. 3 The appeal is brought pursuant to s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001 which provides that the prosecutor may appeal to the Supreme Court as of right against an order in the Local Court dismissing a matter the subject of any summary proceedings, but only on a ground that involves a question of law. In accordance with the power provided for in s 59(2) of the Act orders are sought setting aside her Honour's orders and remitting the matter to the Local Court to be dealt with according to law. Grounds of appeal 4 The summons nominates three grounds of appeal. In submissions they were crystallised as follows: 1. The magistrate erred in law in holding that s 11 of LEPRA did not empower Constable McDowell to request the defendant to disclose his identity because he was a suspect; 2. The magistrate erred in dismissing the charge under s 12 of LEPRA; and 3. The magistrate erred in dismissing the charge under s 58 of the Crimes Act by: i. failing to identify the elements of the offence and apply the evidence to those elements; and ii. failing to hold that Constable McDowell was acting in execution of his duty at the time of the arrest. Background 5 On 30 November 2008 Constable McDowell, in company of another police officer, responded to a complaint that a car window had been smashed when parked in a suburban street. After speaking to a number of witnesses to the incident, and being informed that four men were present when one of their number smashed the windscreen and that they may be at a hotel nearby, police entered the hotel. Once inside a group of four men who answered the description given to police by the eyewitnesses were seen drinking together at the bar. 6 Constable McDowell did not isolate any one of the men in the group as the offender or suspected offender. Instead he approached the group as a whole but spoke to the defendant first. The constable identified himself and asked to speak with the defendant either in the company of the other men or outside the hotel. He then said: "...the reason I'm talking to you is about a man who's had his car window punched by someone, who I think is inside this hotel and I think you might be able to help me out…" 7 Constable McDowell then asked the defendant for his name which he refused to provide. The defendant asked if he was under arrest and was informed that he was not. The defendant again said that he did not wish to provide the officer with any information. Constable McDowell then said to the defendant: "...I believe that you were there when that bloke's window was smashed and you are required by law to tell me who you are. If you don't you are committing an offence..." 8 When questioned in examination in chief as to why he told the defendant that he was required to provide his details, Constable McDowell said: "I wanted his particulars and the particulars of the group of men because I believed that they had been witnesses to the (malicious damage) offence. At that stage I didn't know who had committed it but I definitely knew that they were there, based on their description…" 9 The defendant refused to identify himself even after he was warned that a refusal to do so would constitute an offence. Constable McDowell then informed the defendant that he was under arrest for refusing to supply particulars of his identity. The defendant physically resisted the officer's attempt to detain him. Capsicum spray was used to enable the arrest to be affected. The proceedings in the Local Court 10 The only witness called in the proceedings was Constable McDowell (the police officer). In addition to giving evidence of the conversation he had with the defendant by reference to his statement, evidence was led from him of the description supplied by the eyewitness of the person who smashed the window, namely, a large, tall, muscular Caucasian man with a ponytail or mullet style haircut and a goatee. This man also had tattoos up the side of his neck and was wearing shorts and a dark shirt. In cross-examination the police officer confirmed that the defendant's appearance, and the appearance of at least one of the other men, had features in common with the man the eyewitness described. He said the remaining men in the group had generally similar descriptions to the offender in that they were all Caucasian, with ponytails and were wearing similar style clothing. Based on what he had been told, and his own observations of the men in the group drinking in the bar, he said that he requested the defendant to identify himself, and that he intended to take the particulars of each of the men in the group in turn because he believed that they had also been present when the car window was smashed but that the defendant was the first of the group he spoke to. He said after obtaining the particulars of each man he intended to take a formal statement from the victim and the eyewitness and then, in the course of investigating the matter further, to contact each of the men and to invite them to participate in an identification parade with a view to either eliminating them from the investigation or elevating their status such as might then justify a charge or charges being laid. He conceded that one of the reasons for requesting the defendant's details at the hotel was to ensure that the opportunity to identify him was not lost.

11 In the course of delivering her reasons for dismissing the charges her Honour said: "I think I am persuaded at the time that the police officer spoke to the defendant that he had formed the view that the defendant was a suspect in the allegation concerning the smashing of the window previously. I have come to that view because the police officer had been given a description, the defendant matched that description as did other persons that were present in the hotel at the time. The defendant must, under any circumstances, as at the time when the police officer introduced himself to him and spoke to him, he must have been classified as a suspect in those circumstances. If the defendant was a suspect, then the police officer was not empowered under s 12 to require him to provide his name and particulars because that would be an infringement of his right to silence in circumstances where the defendant, as a suspect, or as a defendant, could decline to assist the police with the investigation because it would be comments against his interests in those circumstances."(sic) 12 Her Honour then concluded that since the police officer was not empowered to require the defendant to identify himself, the evidence led in support of the related offence of resisting arrest under the Crimes Act was tainted by the illegality of the arrest for the offence against s 12 of LEPRA, and dismissed both charges. The legislation 13 Section 11 of LEPRA details the circumstances in which a police officer may require a person to disclose his or her identity. It provides as follows: "A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred".

(Section 3 of LEPRA defines identity of a person to mean the name or residential address of a person, or both.) 14 Section 12 of LEPRA provides: "A person who is requested by a police officer in accordance with sections 11 … to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the request". 15 Section 58 of the Crimes Act provides relevantly: "Whosoever: assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff's officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years". The plaintiff's submissions (a) Grounds 1 and 2

16 The plaintiff submitted that her Honour erred in her construction of s 11 of LEPRA as a result of which she erroneously dismissed the charge under s12. The submissions on the question of construction are summarised as follows: 1. In construing s 11 her Honour wrongly identified, or failed to correctly identify, the circumstances in which a police officer is entitled to request that a person disclose their identity, and that she failed to have regard to those matters when determining whether the elements of the offence constituted by s 12 of LEPRA had been established to a prima facie level at the close of the prosecution case; 2. In construing s 11 her Honour asked herself the wrong question when she queried whether the defendant was, or even might have been, a suspect at the time the police officer requested that the defendant provide details of his identity; and 3. Her Honour failed to find that because the circumstances as set out in s 11 were satisfied the defendant's right to silence was abrogated to the extent provided for by LEPRA.

17 The plaintiff submitted that in considering whether the offence under s 12 was made out her Honour was required to determine whether the evidence established that the police officer's request that the defendant provide his identification particulars was made in circumstances where his identity was unknown, and where the police officer suspected on reasonable grounds that he may be able to assist in the investigation of an alleged indictable offence because he was at or near the place where the alleged offence occurred. Had her Honour approached the task of construction correctly it was submitted that the evidence was sufficient to make out each of the circumstances prescribed by s 11 such that the defendant's refusal to identity himself to the police officer was prima facie evidence of the commission of an offence under s 12. Subject only to the defendant having a reasonable excuse for refusing or failing to comply with the request, which was for him to assert and prove on the balance of probabilities, the offence was open to be found proved to the criminal standard, 18 The plaintiff submitted that instead of enquiring into whether the circumstances prescribed by s 11 were satisfied, her Honour posed an irrelevant question, namely, whether the defendant was a suspect at the time the police officer requested that he identity himself. After concluding that the police officer had in fact formed the view that the defendant was a suspect, her Honour found that the police officer was not empowered to require the defendant to provide information as to his identity since to do so would be an infringement of his right to decline to assist the police with their investigation, an expression of his common law right to silence.

19 Whether the police officer considered the defendant to be a suspect (or whether he might have been so regarded), the plaintiff submitted that on a proper construction of s 11 this was not an inquiry with which her Honour was concerned. What her Honour was concerned with was whether the evidence permitted the finding that the police officer had reasonable grounds to suspect, and did in fact suspect, that the defendant may be able to assist in the investigation of an indictable offence because he was at the place where the alleged offence occurred, when it occurred. The plaintiff submitted that to construe the provision in any other way would be productive of a situation where police would not be permitted to utilise the power provided for in s 11 in the course of an investigation into the commission of an indictable offence in circumstances where they are unable to positively exclude a potential witness as a suspect at an early stage in the investigation but where they have a legitimate need to have the person identify themselves for investigative purposes. In particular, it was submitted that importing into s 11 the concept of "witness" or "suspect" as categories of those who may be able to assist police in the investigation of an offence would constrain the operation of the section in a way not dictated by its terms or its intended reach. Ms Woodburne of counsel illustrated that proposition in the following way: "…If police were to gain entry into my room, where a man lay dead on the floor with a knife protruding from his chest and there were four people standing within the room, the police would not be "acting empowered" (on the reasoning of her Honour) in making a request (pursuant to s 11 of LEPRA) of any of those present for their name (and/or their address) notwithstanding their belief that those present might be able to assist in the investigation because of their presence at the place where the indictable offence occurred and when it occurred because, by reason of their presence and proximity to the body, they "must" be regarded as a suspect or could not be positively excluded as a potential suspect".

20 She also submitted that even if the police officer regarded the defendant as a suspect, or potential suspect, at the time he was requested to provide details of his identity, he was not at that time under arrest. Because the police officer believed on reasonable grounds he was present when the offence was committed, the preconditions in s 11 were satisfied in any event. Were he arrested as the person in fact suspected of having committed the offence of malicious damage, other procedures under LEPRA would have been enlivened, including the obligation to administer a caution (see s 201 of LEPRA). 21 The plaintiff also submitted that in enacting the express power in s 11 of LEPRA the Parliament has abrogated the right to silence to the limited extent provided for in the express words of the section, namely to ensure that police are in a position to identify the person they either suspect may have committed a criminal offence but who they have not determined should be arrested because the suspicion does not meet the statutory test provided for in s 99(2) of LEPRA, or a person who was a witness to the commission of the offence, or who was otherwise in sufficient proximity to its commission, to be able to assist police in the investigation of the offence. (b) Ground 3 22 Irrespective of whether the Magistrate was satisfied that the offence under s 12 of LEPRA was established on the evidence, the plaintiff submitted the Magistrate was obliged to separately consider the elements of the charge under s 58 of the Crimes Act and not to automatically dismiss that charge because it was tainted by what she considered was an illegal arrest on the s 12 offence. 23 In considering the charge under s 58 of the Crimes Act at the close of the prosecution case the question for her Honour was whether the evidence was capable of establishing that the defendant resisted a member of the police force acting in the execution of his duty. In dismissing the charge of resist arrest, her Honour said: "Sergeant, I cannot be satisfied that your police officer was acting empowered under these circumstances, I am afraid. Therefore, the evidence in relation to the resist is tainted by the illegality of the arrest in relation to an unlawful arrest under s 12 and that prosecution must fail also." 24 If her Honour is to be taken as reasoning to the conclusion that the resist arrest charge should be dismissed because the police officer was not empowered under s 11 to request details of the defendant's identity, and that he was for that reason acting beyond his lawful authority, then (assuming that dismissing the charge under s 12 was not otherwise vitiated by error) dismissing the resist arrest charge would seem to follow correctly as a matter of law since one of the elements of the offence could not be made out to the criminal standard. However, if she has reasoned to the conclusion that the resist arrest charge should be automatically dismissed simply because the charge under s 12 upon which the defendant was arrested should be dismissed, her approach was contrary to law because she has failed to consider the separate question whether the evidence was capable of proving that the constable was resisted whilst acting in the execution of his duty. In concluding that the evidence of the defendant's resistance to arrest was tainted with illegality, it is not clear whether her Honour was notionally excluding the evidence of his resistance under s 138 of the Evidence Act 1995 on the basis that the police officer had deliberately practiced a subterfuge by the pretence of demanding the defendant supply particulars of identity as a witness rather than arrest him as a suspect because if arrested he would likely refuse to answer the police officer's questions (the argument advanced on the appeal), or because she was satisfied that the evidence compelled the conclusion that the defendant was a suspect but the police officer was honestly mistaken as to the reach of the power provided for in s 11 when he arrested him for refusing to provide his particulars. 25 It is unnecessary for me to come to a settled view as to the precise basis upon which her Honour reasoned to the conclusion that the resist charge should be dismissed. I am of the view, however, that her positive finding that when the police officer required the defendant to provide particulars of his identity he had formed the view that the defendant was the person who smashed the window was not a finding open on the evidence. What is clear is that her Honour regarded the charge under s 12 of LEPRA and s 58 of the Crimes Act as inextricably linked. Since I have come to the view that the Magistrate erred in her construction of s 11 of LEPRA, and that matter should be remitted to the Local Court for further hearing, it appears to me that dismissing the charge under s 58 also disclosed an error of law and that it should also be remitted for a further hearing in accordance with law. The defendant's submissions (a) Grounds 1 and 2 26 In essence, the defendant submitted that her Honour correctly concluded that the police officer was not empowered by s 11 to request the defendant to identify himself and for that reason she correctly dismissed the charge under s 12. The defendant advanced the further submission that the information available to the police officer when he spoke to the defendant not only supported an inference that he regarded him as the person who damaged the car window, but that he in fact held that belief as evidenced by the fact that he singled the defendant out from the group of men and later offered him an opportunity to participate in an electronically recorded interview as well as an identification parade, procedures which he conceded were not ordinarily offered to witnesses. The defendant also sought to rely upon what was said to be the police officer's concession in cross-examination that when the defendant refused to participate in an ERISP or a line up at the police station after being arrested for refusing to identify himself he "became a much stronger suspect" in relation to the malicious damage offence. This concession, so it was submitted, demonstrates that the defendant was in fact a suspect from the time the police entered the hotel, as distinct from a person who may be able to assist police in their investigation (the language conventionally used to describe a witness or a potential witness) and that requesting details of his identity, by notionally, but deliberately, converting his status from "suspect" to "witness" evidenced a deliberate attempt by police to obtain the defendant's identification particulars contrary to his rights at common law to refuse to speak to police. 27 Further, the defendant submitted that even if the defendant did not personally smash the car window, the information supplied by the witnesses supported a suspicion that he was complicit in the commission of that offence. The defendant argued that supplying his name on request would entail the concession that he was in fact present during the alleged offence and that this would constitute an admission against interest. It was submitted that in these circumstances the defendant was entitled to exercise his right against self-incrimination by refusing to provide his particulars and the police officer could not attempt to curtail that right by seeking to rely on s 11 on the basis that he reasonably believed that the defendant was a witness to the commission of an indictable offence. 28 Before considering the defendant's primary submission to the effect that the police officer gave false evidence as to the reason he asked the defendant to supply his particulars, I propose to deal with the second submission. 29 I do not regard the provision of particulars of identification in this case as an admission against interest. It is simply a response to a request by a police officer based on his belief that the defendant was present when an indictable offence was committed, which does not convert into an acknowledgement or admission that he was in fact present when that occurred. The primary submission also lacks force because the underlying assumption, namely that it was open to the Magistrate to find the police officer had lied and that in requesting the defendant's particulars of identity he deliberately subverted the defendant's right to silence, was not a conclusion either open to the Magistrate or inherent in her reasoning when she dismissed the charge. Were she of that view and the evidence supported such a finding, the charge may have been dismissed because of impropriety in the conduct of police. 30 The defendant accepted that the common law right of a person not be required to incriminate themselves when questioned by police can be abrogated by statute, but only where the Parliament has evinced an intention to do so by clear words, or where abrogation of the right to silence is necessary to prevent the provision under consideration being rendered inoperative. He submitted, however, that s 11 did not abrogate the right to silence where the person who was asked to identify themselves was in fact suspected of committing the offence. 31 The defendant sought to supplement this submission by referring me to the second reading speech of the Crimes Legislation Amendment (Police and Public Safety) Bill of 1998 the passage of which resulted in an amendment to the Crimes Act by the introduction of s 563 empowering police officers to require people to provide particulars of their identity, a section which prior to its repeal was in precisely the same terms as currently found in s 11 of LEPRA. Reference to this material, it was submitted, reveals that it was not the intention of Parliament to modify the right to silence of persons suspected of having committed an indictable offence but to provide a mechanism by which reluctant witnesses to the commission of an offence could be compelled to provide their identification details so that thereafter they may be contacted by police to assist in further investigation into the commission of that offence.

32 A court may look to extrinsic material to determine the meaning of a provision in a statute in limited circumstances. Section 34 of Interpretation Act 1987 provides as follows: "34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) … (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes: (a) … (b) … (c) … (d) … (e) … (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, (g) … (h) …

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to: (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and (b) ..."

33 I do not consider that the meaning of s 11 admits of obscurity or ambiguity. Furthermore, I do not consider that the ordinary meaning of the words "person who may be enabled to assist in the investigation", even if taken to include a person who is suspected of having committed a criminal offence but who is not yet charged (or who cannot be excluded as a suspect), is productive of an unreasonable or manifestly absurd result when viewed in the context of an Act which comprehensively restates the powers of police in the investigation and prosecution of criminal offences. For those reasons, I do not propose to refer to the second reading speech in resolving the questions raised by the summons.

34 So far as concerns the question whether s 11 abrogates the right to silence, the plaintiff referred me to the New South Wales Law Reform Commission Report 95 (2000), "The Right to Silence". In the view of the authors of the report the amendment to the Crimes Act in 1998 which introduced the (now repealed) s 563, is an example of the statutory abrogation of the right to silence (see paragraphs 2.20 and 2.24). In my view that conclusion is consistent with the rule of construction that has been strictly applied in a plethora of cases where it is claimed the Parliament has intervened to deprive a person of an important common law right privilege or immunity (see A v Boulton (2004) 136 FCR 420 at 434-9). I am satisfied that by the passage of the Crimes Legislation Amendment (Police and Public Safety) Act 1998, and the incorporation of the equivalent provision into LEPRA in 2002, Parliament intended to abrogate the right to silence to the extent that a person is required to provide their identification details to police in the circumstances provided for the section. 35 I am also satisfied that unless and until a person who police believe was present when an indictable offence is committed is arrested and charged with committing the offence, that person, even if he or she may be regarded as a suspect or potential suspect, is obliged to provide their identification details if requested by a police officer who believes that the person may be able to assist police in their investigation. It also follows that if they refuse, otherwise than on reasonable grounds, they are liable to be convicted of an offence against s 12. 36 In this case, the evidence did not permit of any conclusion other than that Constable McDowell had not in fact determined to arrest and charge the defendant with malicious damage to the car window, despite his suspicions that the defendant may be the offender. That said, because he was of the firm view that the defendant was present at the time the window was smashed, and believed he needed to be able to locate the defendant as the investigation into the commission of that offence proceeded, I am satisfied he was empowered under s 11 to require the defendant to answer his questions, albeit expressly limited to the provision of his name and address. 37 Accordingly, I make the following orders: 1. The order of Holdsworth LCM made on 4 June 2009 at Newcastle Local Court dismissing proceedings commenced against the defendant for the offence of failing/refusing to disclose his identity on request, pursuant to s 12 of the Law Enforcement (Powers and Responsibilities) Act 2002, is set aside. 2. The order of Holdsworth LCM made on 4 June 2009 at Newcastle Local Court dismissing proceedings commenced against the defendant for the offence of resisting a police officer in the execution of his duty, pursuant to s 58 of the Crimes Act 1900, is set aside.

Both the matters are remitted to the Local Court to be dealt with according to law.

The defendant is to pay the plaintiff's costs of these proceedings.

I direct that a certificate issue under s 6 of the Suitors' Fund Act 1951. **********

11/05/2011 - Typographical error - Paragraph(s) 31 and 34

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