Did his Honour err in finding that the arrest of the defendant by the transit officers was in contravention of an Australian law?
33The discretion in s 138 of the Evidence Act is enlivened where evidence is obtained by or as a consequence of an impropriety or illegality. Section 138 is in the following terms:
Discretion to exclude improperly or illegally obtained evidence
(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.
(2) ...
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
34The plaintiff submitted that it was not open to his Honour, as a matter of law, to find that the arrest was in contravention of an Australian law or that the exercise of the power in the circumstances was unlawful or improper, and for that reason s 138(1) of the Evidence Act was not engaged.
35In circumstances where the arresting officer's reliance upon s 100 of LEPRA as the source of the power to arrest the defendant was not in issue, and where there was nothing in the evidence to support a finding that it was other than properly exercised for the statutory purpose of transferring his custody to police, the plaintiff submitted his Honour's focus upon whether the arrest was illegal or improper under the provisions of s 99 of LEPRA, a section which is confined to governing police powers to arrest, has led him into error. On that issue his Honour said:
The cases make it clear that arrest is a [last] resort and indeed when one looks at s 99 of LEPRA with respect to police officers, it is plain that the Parliament is [cognisant] of that ... the cases make it clear that it is a last resort, arrest is a last resort and should be used sparingly. On the evidence, there was no suggestion that once the marker was confiscated there would be any further offending, which of course enlivens the principles in subs 3 of 99 of LEPRA.
36The plaintiff submitted that his Honour conflated consideration of the legality of an arrest pursuant to s 100 (often referred to as a "citizen's arrest") with the legality of police powers to arrest conferred by s 99. Section 99(1) is in the following terms:
99 Power of police officer to arrest without warrant
(cf Crimes Act 1900, s 352, Cth Act, s 3W)
(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.
37Where s 99(1)(b) qualifies the exercise of the power of police to arrest without a warrant, the plaintiff submitted that the only qualification on the exercise of the power in s 100 is that the arresting person is to take the arrested person before an authorised officer as soon as practicable: s 100(2) of LEPRA.
38The plaintiff submitted that the evidence of the transit officers allowed for no finding other than that the defendant was arrested for that limited statutory purpose (in this case taking him to the police) to be dealt with according to law and that there can be no contravention of s 100 in those circumstances. The plaintiff pointed to the fact that shortly after the arrest, and before the conduct said to constitute the assaults, the transit officers requested that police attend at Woy Woy Railway Station to transfer the custody of the defendant to them. Once the power under s 100(1)(a) is invoked, (as the plaintiff submitted it was here, since the defendant was seen defacing the window contrary to the Graffiti Control Act), it was submitted that there is no further statutory limitation, condition or qualification on the exercise of the power. This is in direct contrast to the situation that prevails under s 99 where the arrest without warrant may only be effected (by police) where it is reasonably necessary to do so, in particular, where other options will not suffice.
39The plaintiff submitted that his Honour's reasons reveal a failure to appreciate the critical distinction between the two provisions, and that in considering the legality or propriety of the arrest in this case he conflated the qualified power of arrest under s 99 with what was submitted to be the unqualified power of arrest under s 100.
40The plaintiff submitted that what his Honour saw as determinative of whether or not the arrest was illegal or improper is exemplified in the rhetorical question he posed in the following terms: "What would have been achieved by the arrest that could not have been achieved by a future court attendance notice?". The plaintiff submitted that was a question irrelevant to an inquiry into the unlawfulness or impropriety of an arrest under s 100 since it assumes, erroneously, that an arrest without warrant under s 100, in circumstances where a court attendance notice could have been issued, is sufficient to constitute an impropriety for the purposes of the operation of s 138(1). The plaintiff submitted the question his Honour should have asked was whether the exercise of the power to arrest was "clearly inconsistent with the minimum standards of acceptable conduct in all the circumstances" (see Robinson v Woolworths [2005] NSWCCA 426; 64 NSWLR 612 at [23], [37]; DPP v AM [2006] NSWSC 348; 161 A Crim R 219 at [38]-[47]). The plaintiff submitted that had his Honour undertaken that inquiry, giving proper consideration to all of the circumstances prevailing at the time of the defendant's arrest, his Honour would not have been satisfied that the conduct of the arresting transit officer admitted of any finding of impropriety and, even less, of illegality.
41The plaintiff relied upon the following circumstances in support of that submission:
(1)The transit officers were not aware that they had the power to issue a court attendance notice, and were under instructions to make an arrest in accordance with s 100 of LEPRA and then to call for police assistance.
(2)The transit officers were dealing with a volatile situation involving a large group of youths, at least some of whom were intoxicated.
(3)In view of the number of youths, the arresting officer prioritised his safety and that of his partner over that of obtaining the details of the defendant whilst they were in the vestibule area of the train.
42In considering the plaintiff's submission at (1) above, and after a careful reading of the evidence of the officer, the evidence of the arresting officer was that he had been instructed that he could rely on s 100 to effect an arrest, not that he was instructed to do so. Further, he did not give evidence that he believed that the exercise of the power to arrest was the only option available to him when he saw an offence being committed or suspected that to be the case. To the contrary. As to whether it was possible to obtain details of the identity of a person who he believed had committed an offence and then supply those to the police to enable them to issue a court attendance notice, he gave the following evidence:
Q. You would agree it is possible for you to give police a name and address and have them issue a court attendance notice on your behalf without the arrest of the person? You'd accept that's a possible way to proceed.
A. I'm unaware of it occurring; its not our normal procedure. If we arrest - when the police arrive it's whatever they chose to be the, the course of action where the person's given a court attendance notice or charged, its up...
Q. So what you've said there is you're unaware that, that's not your normal procedure?
A. No. Our normal procedure is if we arrest for an offence that we don't have the power to issue a penalty notice, we contact our control room; we contact the VKG and the police are dispatched to our location on - when the police arrived they'll take carriage of the matter and deal with it appropriately."
[Emphasis added.]
43The officer's use of "if" in a conditional sense twice is significant. In my view, it signifies his appreciation that there were alternatives available to be considered where he was witness to an offence being committed before proceeding directly to arrest the suspect. Those alternatives include, where circumstances permit and physical detention or restraint of a suspect is not called for, obtaining a suspect's details for referral on to police.
44Also, in support of (1), the plaintiff submitted that DPP v Carr [2002] NSWSC 194; 127 A Crim R 151 was distinguishable. In that case Smart AJ found that the power of arrest was exercised by police for the purpose of detaining Mr Carr and charging him. In circumstances where the arresting officer knew Mr Carr's details, and where the officer knew he had the power to issue a summons as an alternative to arrest, his Honour concluded that Mr Carr was arrested because it was the more expedient option. This underpinned his Honour's conclusion that the power to arrest was improperly exercised. By contrast, in this case, the plaintiff submitted the transit officer exercised the power of arrest under s 100 for the sole purpose of bringing the defendant to the police, in circumstances where he was unaware he had the power under s 173 of the Criminal Procedure Act to issue a court attendance notice. The plaintiff submitted that his Honour did not give adequate consideration to that fact, and failed to give proper consideration to all of the relevant circumstances before concluding that the arrest was improper and/or unlawful. What this submission fails to deal with is the evidence bearing upon whether, in the circumstances, an arrest was necessary at all.
45While the propriety of an arrest must be considered in the context of "all the circumstances" (see Robinson v Woolworths at [23], [37]; DPP v AM at [38]-[47]), the relevant circumstances must be confined to the facts preceding the decision to arrest. Events that unfold consequent upon or immediately following an arrest are irrelevant for the purposes of determining whether the arrest was unlawful or improper. As Barr J observed in DPP v CAD at [25], consideration as to whether an arrest is justified should be directed to "the time of arrest". In the present case, the time between the officer observing the defendant committing the graffiti offence and arresting him for it (or for malicious damage, the offence he nominated at the time) allowed for no reflection or hesitation on the part of the arresting officer and none was suggested. The arresting officer's statement (tendered as his evidence in chief on the voir dire) sets out the circumstances leading up to the arrest:
7. On entering car 9115 I proceeded to the lower deck where I observed a large group of people yelling and standing in the aisle. As I walked down the aisle I observed a male of thin build ... holding a thick marker in his right [hand] and drawing on the window...
8. I approached the male once he had sat down. I said 'You're under arrest for malicious damage' and removed the marker from his right hand. I then said 'You don't have to say or do anything if you don't want to, do you understand?'...
[Emphasis added.]
46As to (2) and (3) in [41] above, there was no evidence to suggest that the presence of a large group of young people in the train, some of whom may have been intoxicated, had any bearing on the officer's decision to arrest. Similarly, the officer's evidence that he did not ask the defendant for details of his identity once he had escorted him to the vestibule of the train because he "did not consider it safe to do so" is irrelevant to the enquiry as to what was the appropriate response to seeing the defendant using the marker because, by the time he was in the vestibule, the defendant was already under arrest.
47Rather, the evidence of the transit officer was to the unqualified effect that the arrest was effected immediately upon seeing the defendant and approaching him. This is consistent with his evidence that the first words he said to the defendant were, "You're under arrest". Moreover, he said by that time the defendant had stopped writing on the internal wall of the train with the marker and had sat down such that there was no suggestion that he was in the process of running away or otherwise resisting their approach. There is nothing in the evidence that suggests that an alternative course of action that did not involve arresting the defendant (commencing with asking for his name and address and seeking confirmation of those matters by the production of identification) would have been ineffective to bring what the transit officer believed to be the defendant's criminal conduct to the attention of police, much less that there was any need to restrain him or detain him incidental to the arrest.
48The observations of Smart AJ in DPP v Carr (at [35]) as to the limited circumstances in which the powers of arrest should be exercised bear reemphasis:
This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded.
49In the present case the defendant was subjected to the additional punishment of being deprived of his liberty and being physically restrained for the commission of an offence that is punishable only by a fine, in circumstances where the arresting transit officer must be taken to have been aware that there were alternatives available to him even if he may not have been certain as to what they were.
50Although Smart AJ was dealing with arrest powers under s 352 of the Crimes Act (since repealed), I note that the second reading speech to the Bill introducing LEPRA in 2002 makes it clear that the legislature intended that both ss 99 and 100 would be subject to the restrictions on the exercise of the power to arrest, including that arrest should be exercised only when necessary, and only as a last resort. In any event, s 352 did not displace the common law with regards to limitations on the power to arrest; neither did the enactment of ss 99 and 100 of LEPRA which replaced that provision (see Zaravinos v State of NSW [2004] NSWCA 320; 62 NSWLR 58 per Bryson JA at [23]). In Zaravinos, at [23], Bryson JA observed that because of the high value the law places on personal liberty, "a statute which authorises the detention of a person must be strictly construed".
51In Williams v R [1986] HCA 88; 161 CLR 278, Mason and Brennan JJ considered the "jealousy" with which the common law protects the right to personal liberty:
The right to personal liberty is, as Fullagar J described it, "the most elementary and important of all common law rights": Trobridge v Hardy. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England "without sufficient cause" Commentaries on the Laws of England ... He warned:
"Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper... there would soon be an end of all other rights and immunities."
That warning has been recently echoed. In Cleland v The Queen Deane J said:
"It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed."
The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes.
52Although his Honour did not say so expressly, it is implicit in his reasons that he was satisfied that the transit officer's decision to arrest the defendant was the result of either expediency or uncertainty as to how to respond in the circumstances, not, as the plaintiff submitted, because it was the appropriate response. Far from the power to arrest being executed as the last resort as is required at law, it was the transit officer's first response. There is no evidence to suggest that obtaining the defendant's details and passing them on to the police would not have been an effective way of dealing with the graffiti offences. In my view, in all the circumstances, the evidence supports his Honour's finding that the arrest was unlawful and improper.
53I dismiss Grounds 1 to 5.