Director of Public Prosecutions (NSW) v Mathews-Hunter

The proceedings on appeal 10By summons filed on 15 October 2013 the plaintiff brings proceedings pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW). Section 56(1)(c) provides for a right of appeal against an order made by the Local Court dismissing a matter the subject of any summary proceedings on a question of law. The plaintiff seeks an order pursuant to s 59(2) of the Crimes (Appeal and Review) Act that the order of the Magistrate dismissing the assault charges be set aside as constituting an error of law and that the matter be remitted to the Local Court to be dealt with according to law. 11The grounds of appeal are that the Magistrate erred in law: (1)In holding that the evidence was capable of establishing that the defendant's arrest was in contravention of an Australian law within the meaning of s 138 of the Evidence Act; (2)In holding that the evidence was capable of establishing that the defendant's arrest was improper within the meaning of s 138 of the Evidence Act; (3)In holding that in order to determine whether the arrest of the defendant was unlawful or improper within the meaning of s 138 of the Evidence Act the question to be asked was "what would have been achieved by the arrest that could not be achieved by a future court attendance notice"; (4)In holding that the defendant's arrest was improper within the meaning of s 138 of the Evidence Act without considering whether the arrest was inconsistent with the minimum standards of acceptable conduct in all the circumstances; (5)Excluding the evidence of the alleged offences without considering whether the evidence had been obtained in consequence of the arrest of the defendant within the meaning of s 138 of the Evidence Act; (6)Failing to apply the criteria in s 138(3) of the Evidence Act in determining to exclude the evidence of the alleged offence; (7)Failing to provide adequate reasons for excluding the evidence; (8)Excluding the evidence of the alleged offences; and (9)Dismissing the proceedings for the alleged offences.

The events of 8 February 2013 12On the evening of 8 February 2013 the defendant was travelling on the Gosford train line in the direction of Woy Woy. Four transit officers, including transit officer Muscat, the arresting officer, were patrolling the train. He gave evidence that he was patrolling the train with a fellow transit officer when they were alerted to a disturbance in one of the carriages. Upon entering the carriage he observed a large group of young people. He walked down the aisle of the carriage and observed the defendant drawing on the window using a thick marker. He approached the defendant and immediately placed him under arrest, saying: You're under arrest for malicious damage. You don't have to say or do anything if you don't want to, do you understand? Anything that you do say or do will be recorded and used in evidence in court. Do you understand? The defendant did not respond. The transit officer removed the marker from the defendant's hand. 13The defendant was then escorted to the vestibule of the train from where the transit officer telephoned to request that police attend Woy Woy Railway Station. 14Two other transit officers then entered the vestibule where the arresting officer had charge of the defendant. One of the officers gave evidence that the large group of young people then approached the vestibule area of the train and yelled things like "let him go", "what are you doing" and "you can't touch us". 15The arresting officer gave evidence that whilst in the vestibule of the train he conducted a "risk assessment" and considered it "unsafe" to have his hands occupied by a pen and a notebook because it would limit his ability to access his baton if the defendant made an attempt to escape. He also gave evidence that he considered it was not "safe" to "proceed further with [the] investigation" once the defendant was in his custody because of the number of people in the vestibule, including the defendant's friends, who the transit officer observed to be intoxicated. 16Approximately five minutes after the defendant was arrested the train arrived at Woy Woy station. Two officers, applying what was described as an "escort hold" where each held one of the defendant's arms, escorted him from the train to a seat on the platform. The group of young people also got off the train. The arresting officer gave evidence that the group approached and surrounded them, whereupon he released his hold on the defendant, drew his baton and approached the group. The other officer took hold of the defendant's left arm. He gave evidence that the defendant then stood up whereupon he put the defendant's left arm behind his back in a rear wristlock position. The defendant asked him to let him go, before making a "headbutt motion" towards the officer's face without making contact. That conduct grounded the offence of common assault. The defendant again asked for the hold on his arm to be released. Further pressure was applied. When the officer did release the pressure on the defendant's wrist slightly, the defendant made another "headbutting motion", this time making contact with the officer's mouth. This conduct grounded the offence of assault occasioning actual bodily harm. The defendant was then handcuffed. The police arrived a short time later.

The Local Court hearing 17In the Court below (and on appeal) it was common ground that the transit officers who arrested the defendant purported to do so under s 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). The arresting officer gave evidence that he believed he did not have the power to issue a court attendance notice for an offence under the Graffiti Control Act, and that "if" he needed to arrest the defendant, it sourced from s 100 of LEPRA. He understood s 100 entitled him to arrest the defendant without warrant as he was a person who was in the act of committing an offence, or had just committed an offence, namely an offence contrary to the Graffiti Control Act. That section provides as follows: 100 Power of other persons to arrest without warrant (cf Crimes Act 1900, s 352) (1) A person (other than a police officer) may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised office to be dealt with according to law. [Emphasis added.] 18In the Local Court it was submitted that the power to arrest under s 100 should not have been exercised as the transit officer could have (and should have) taken the defendant's name and address and supplied it to police to permit the issue of a future court attendance notice alleging a breach of the Graffiti Control Act at their discretion on information supplied by the transit officer. The defendant submitted that in circumstances where, as here, there was ample opportunity for the transit officer to ascertain his details before he was arrested, and where there were no other circumstances warranting his arrest, the arrest was unlawful and/or improper. 19In cross-examination, the transit officer agreed that five minutes elapsed between placing the defendant under arrest and the train arriving at Woy Woy station. He said that he did not obtain the defendant's details even at that time because the defendant was under arrest (and presumably he intended transferring custody to the police on arrival at the station). The transit officer then gave the following evidence: Q. All you need to do, I'd suggest to you, was obtain a card or some piece of ID, what do you say? A. Yeah, I would - it's not just a simple process like to get a card. I have to get the identification, notate down the identification in my contemporaneous notebook, authenticate that it's correct, and in a, in a short space of time between when the offence occurred and when we alighted the train, there wouldn't have been sufficient time. 20The defendant gave evidence that he had an identity card in his possession and would have produced it to the transit officers had they asked him to identify himself.

The Magistrate's decision 21The Magistrate delivered his reasons ex tempore. He made a number of factual findings before considering whether the discretion to exclude evidence under s 138 had been enlivened and whether the evidence should be excluded in exercise of that discretion. 22His Honour was satisfied that the transit officers were "instructed" that they could rely on the power to arrest in s 100 of LEPRA. There was no direct evidence (and the Magistrate made no finding) as to whether they understood the limits of the power conferred on them by that section, although, on one view, that was implicit from the fact that they appreciated the power to arrest under s 100 was different from the arrest power conferred on police under s 99 of LEPRA. His Honour also found that the defendant was carrying identification at the time he was arrested which he was not asked to produce. 23The Magistrate was also satisfied that there were, in fact, alternative measures available to the transit officers pursuant to s 173 of the Criminal Procedure Act 1986 (NSW) to institute proceedings themselves for the graffiti offences without arresting the defendant, although he accepted that the officers were unaware of them. Section 173 of the Criminal Procedure Act enables a police officer or a "public officer" to commence proceedings by issuing and filing a court attendance notice. His Honour found that the transit officers were "public officers" as defined in s 3 of the Criminal Procedure Act for the purposes of s 173. Those provisions are in the following terms: 3 Definitions "public officer" means any of the following persons, if acting in an official capacity: (a) an employee in the Public Service or the NSW Police Force, (b) an officer or employee of a statutory body representing the Crown, (c) an employee of a council within the meaning of the Local Government Act 1993 (d) a member of staff of Local Land Services, (e) the Director of Public Prosecutions, Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions, (f) an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition. 173 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division. 24He then considered whether in the circumstances in which the defendant was arrested, including the fact of his arrest, there was an impropriety or contravention of an Australian law such as to enliven the discretion to exclude the evidence. 25As a general proposition, the Magistrate observed that it has been authoritatively held that police powers to arrest should be a last resort and should be exercised sparingly. He also observed that once the defendant's marker had been confiscated, there could be no suggestion that he was at risk of committing further offences and, further, that there was no evidence that the defendant was known to the transit officers as a repeat graffiti artist or a person who was generally known to damage property. In short, he was not known to them at all. 26The Magistrate also expressed concern that the defendant was only slightly over 18 years of age at the time of his arrest and that he looked "very young", such that the transit officers should have been alert to the possibility that he was under 18. Were that the case he would be subject to a different statutory arrest regime. (Although the Magistrate did not make explicit reference to the arrest regime applicable to children, I note that criminal proceedings against a child suspected of committing an offence should not be commenced other than by summons or court attendance notice: see DPP (NSW) v AM [2006] NSWSC 348; DPP v CAD & Ors [2003] NSWSC 196; see also s 8(1) of the Children (Criminal Proceedings) Act 1987 (NSW)). 27His Honour then moved to consider what he described as "the importance of the evidence". The plaintiff submitted that his Honour had not by that stage in his reasons made a definitive finding as to the legality or propriety of the arrest. The plaintiff submitted that for his Honour to move to consider the "importance" of the evidence as a specified consideration under s 138(3) without a finding of illegality or impropriety was contrary to the two-stage process contemplated by s 138. The plaintiff submitted that the first stage of the process is to inquire into whether the evidence was obtained illegally or improperly or in consequence of an impropriety or of a contravention of an Australian law. Only where the evidence permits such a finding, it was submitted, is it appropriate to undertake the balancing exercise involved to determine whether referable to the non-exhaustive considerations in s 138(3), the desirability of admitting the evidence outweighs the undesirability of admitting it. The approach adopted by the Magistrate was said to constitute error (see later at [55]ff). 28In so far as the importance of the evidence was concerned his Honour found that the assaults were serious, the evidence suggesting they were committed by the defendant in retaliation at being arrested and wrist-locked and that the officer who was allegedly struck was "doing his job". 29His Honour then reverted to a consideration of the meaning of "contrary to an Australian law" and whether the arrest of the defendant was illegal or improper, against which he said he needed to balance the need for criminals to be apprehended and the rights of citizens to their liberty. His Honour said: Contrary to an Australia law, includes the common law, and that is cl 9 pt 2 of the dictionary of the Evidence Act - that includes the common law - Mr Gibbon submitted in light of the facts and the authorities, the arrest was illegal and improper and the illegality and impropriety was sufficiently grave to require exclusion of the evidence. Against that I need to balance the need to apprehend criminals, but I also need to balance against that the rights of all citizens, whether they be committing criminal offences or not. So looking then at the authorities in cases where an offence is threatened or it has actually been committed where the offender has been apprehended immediately or on the fresh pursuit after an offence, which seems to be what happened here ... The powers of arrest without warrant have long been recognised by the Commonwealth and there are statutory provisions as necessary to prevent injury to the person or property of others ... [his Honour then referred to the judgment of Dean J in Donaldson v Broomby [1982] FCA 58; (1982) 60 FLR 124.] It would seem on the evidence of the rail safety officers there was reasonable cause as understood in Hazell v Parramatta County Council [1986] 1 NSWR 165. I have also looked at the Court of Criminal Appeal decision in Lake v Dobson unreported 19 December 1980; Fleet v District Court & Ors [1999] NSWCCA 363; and of course where the propriety of an arrest where a court attendance notice would suffice, we come back to Smart AJ in DPP v Carr, which, although that case was decided in favour of the DPP, it was not decided in favour of the DPP with respect to the exercise of the power of arrest by the police officers upon Lance Carr that evening at Wellington. ... Looking at the authorities on one hand, looking at the evidence on the other and the balancing exercise that I have to undertake, I have to ask myself a question in my view and that is what would have been achieved by arrest that could not be achieved by a future court attendance notice? Other than the question of bail I am not convinced anything more could have been achieved and in the circumstances, as concerned as I am about the use of a clear photosensitive marker ... to deface and damage CityRail property .... In my view and with regard to the authorities, particularly where the accused looks for all purposes to be potentially a young person, in my view the [impropriety] should not be excused. Impropriety or unlawfulness should not be excused. Looking at the cases and their restatements in common law, what happened [here] was in my view in contravention of Australian law which includes unwritten law. 30The Magistrate then turned to consider the "unfairness" which might result from his finding that the evidence of the assaults should be excluded as being improperly or illegally obtained, including the "unfairness" that might be perceived by the community and by the transit officer who was assaulted. His Honour accepted that the transit officers were potentially compromised in the circumstances that presented on the train, in particular, by their status and training as transit officers, and possibly by the limited resources available to them to enforce what is perceived to be "antisocial criminal behaviour of those who would destroy, deface and damage public property at the cost of the whole community". Although "unfairness" per se is not a criteria specified in s 138(3) against which the discretion is to be exercised, the balancing exercise in s 138(1) does allow for weight to be afforded the matters his Honour took into account when considering whether the desirability of the evidence outweighs the undesirability of admitting it given the way it was obtained. His Honour then went on to conclude: ... So notwithstanding my concern about the difficult situation that the rail safety officers were in, I will exclude the evidence for the reasons I have given that the authorities make it plain that if nothing more could be achieved by issuing a future court attendance notice then that is the route that should have been taken and if that is a deficiency of the training of the rail safety officers that is something for them to remedy, but the whole situation in my view is unsatisfactory and with respect to protection of property and safety of commuting public where the rail safety officers have only the power of an ordinary citizen. 31On occasions his Honour referred to both illegality and impropriety in the obtaining of the evidence, and alternated between them. The defendant submitted that nothing turns on this since it is clear that the Magistrate found that the defendant's arrest was not warranted where a court attendance notice could have been issued despite the transit officers being unaware they had that power under s 173 of the Criminal Procedure Act. I am satisfied that despite the fact that his Honour did not refer to s 100 in specific terms, his Honour's reasons should also be understood to include a finding that the arrest involved both a contravention of an Australian law because the arrest of the defendant was not warranted (namely an arrest contrary to s 100 of LEPRA) and an improper exercise of that power because the arresting officer did not give due consideration to the use of the power to arrest under that section as a last resort.

The issues on appeal 32Each of the nine grounds of appeal identified in the summons contend that his Honour's reasons disclose a discrete error of law. Read collectively they can be distilled into the following three questions: (1)Did his Honour err in finding that the arrest was improper or in contravention of an Australian law? (2)Did his Honour err in his application of s 138 of the Evidence Act, specifically, by conflating the threshold question of whether s 138(1) was engaged with the balancing exercise informed by the criteria in s 138(3)? (3)Did his Honour err by failing to provide adequate reasons for excluding the evidence of the alleged offences?

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.

Did his Honour err in his application of s 138 of the Evidence Act, specifically, by conflating the threshold question of whether s 138(1) was engaged with the balancing exercise informed by the criteria in s 138(3)? 54The plaintiff submitted that even were I persuaded that his Honour's finding that the arrest was unlawful or improper was not shown to be infected by error, I would nonetheless be satisfied that his approach to the balancing exercise under s 138(1) disclosed error sufficient to justify the relief sought under the summons. 55Section 138(1) is engaged by a finding that evidence was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or contravention of an Australian law. If the evidence was obtained in that way, the evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. Section 138(3) sets out the criteria that the court is to take into account when conducting the balancing exercise under s 138(1). 56The plaintiff submitted that his Honour confused the threshold question of illegality or impropriety in the obtaining of the evidence of the assaults with the balancing exercise in s 138(1) which is informed by the mandatory criteria in s 138(3), and that he treated the question of the lawfulness of the arrest, or impropriety in the way it was effected, as determinative. The plaintiff also submitted that his Honour's reasoning was flawed, as exemplified in his observation that his decision to exclude the evidence may produce "an unfair result" (see [30] supra). 57As noted at [27], before finally deciding whether the evidence of the arrest was obtained illegally or improperly or in consequence of an illegality or impropriety, his Honour considered what he called the "importance" of the evidence, including the seriousness of the assault committed on a transit officer during the course of his employment, and the evidence that suggested the assault was an act of retaliation. The plaintiff submitted that those considerations, referred to expressly in ss 138(3)(a) and (b), are relevant only to the balancing exercise involved in whether the evidence should be excluded as a matter of discretion and that his Honour was in error in moving to consider those matters before determining whether s 138 was engaged at all. 58Approached in this way, the plaintiff submitted, his Honour did not properly turn his mind to the mandatory considerations in s 138(3), in particular, the gravity of the impropriety or the contravention (s 138(3)(d)), and whether the impropriety or contravention was deliberate or reckless (s 138(3)(e)). The plaintiff submitted those considerations necessarily involve the length of the period of arrest and the fact that the transit officers misunderstood the scope of their powers, both of which weighed heavily against the discretionary exclusion of the evidence. In addition, the plaintiff submitted that his Honour gave undue weight to public policy considerations, including "the rights of all citizens, whether they be committing criminal offences or not". 59The defendant submitted that the Magistrate addressed the requirements of s 138, that his approach was not eloquent of error and that there is no basis for any review of the discretionary exercise under s 138(1) according to the principles in House v The King (1936) 55 CLR 499. 60The defendant conceded that while, at times, his Honour referred simultaneously to both of the questions to which s 138(1) gives rise, there is no absolute requirement that his Honour make a formal finding regarding illegality or impropriety before turning to the balancing exercise embodied in s 138(1), or any rigid divide between the need to undertake a fact finding exercise and the evaluative exercise that addresses those facts in the context of the s 138(3) criteria. In support of that contention the defendant referred to the observations of Basten JA (with whom Barr and Hall JJ agreed) in Robinson v Woolworths, where his Honour made the following observations in relation to the discretion to exclude prosecution evidence on public policy grounds (at [19]): ...It is implicit that the minimum standards of acceptable conduct must be understood to depend on the circumstances of the case. It seems inevitable that factors which may become relevant to the exercise of the discretion to admit such evidence are also relevant to the anterior question of whether there was impropriety, triggering the exclusionary rule. 61The defendant also relied upon DPP v Tamcelik [2012] NSWSC 1008 in which Garling J made the following observations (at [109]-[110]) after considering a number of cases regarding the proper application of s 138 and the separate determinations required by s 138(1): These decisions make it plain that there are two separate issues to be considered: first, impropriety or illegality, and secondly, whether the evidence ought nonetheless be admitted. The facts relating to each step are usually the same, and turn on the nature of the proceedings, the prosecution case, and the factual circumstances of the impropriety or illegality. But these are all matters, if s 138(1) is to be relied upon, that must be proved by the person tendering the impugned evidence, in order that it might be admitted. Whilst there are two separate issues to be determined, the decisions to which I have referred and as well the judgment of Basten JA in the Court of Appeal in Parker v Comptroller General of Customs [2007] NSWCA 348; (2007) 243 ALR 574, do not mandate a two-step procedure for a court considering this question. It is not necessary, and ordinarily would not be the position, that a court would proceed first to hear evidence and argument on the first step, that is, a determination of illegality or impropriety, then deliver a decision which is followed by a second and separate hearing including separate submissions on whether the evidence ought nonetheless be admitted. Whilst, in exceptional cases, such an approach may happen, it is not the norm. Ordinarily, it would be expected that there would be one occasion for the adducing of all the necessary evidence, and one occasion for submissions by counsel to the Court. The submissions would ordinarily be expected to cover the alternative results, of whether the evidence is, or is not, found to be illegally or improperly obtained." [Emphasis added.] 62The plaintiff accepted that it is permissible to deal with the engagement of the power and the exercise of the discretion simultaneously at the hearing of the evidence but maintained the submission that the reasoning process required by s 138 necessitated that there be a discrete enquiry into whether there was illegality or impropriety in the obtaining of the evidence which must be answered before the balancing exercise required by s 138 is addressed. 63The defendant submitted that his Honour's formulation of the enquiry under s 138 at the commencement of his reasons admits of no suggestion that he misunderstood the issues of fact and law to which challenge to the defendant's arrest gave rise. His Honour said: Section 138 of the Evidence Act is a discretionary exclusion and it arises as a formulation of the law in regard to Bunning v Cross and later Ridgeway v The Queen. And it requires the evidence not to be admitted if it was improperly obtained or obtained in contravention of an Australian law. Unless (sic) the desirability of admitting the evidence outweighs the undesirability of admitting the evidence ... obtained in the way in which the evidence was obtained... 64Further, the defendant submitted that his Honour's reasons should be read in the context of the submissions which immediately preceded his Honour's ex tempore reasons for excluding the evidence: PROSECUTOR: I'd be asking the court to accept that the officers are not in contravention of any Australian law and your Honour should not apply [138]. HIS HONOUR: What about the second consideration? That if it is in contravention of Australian law or improperly obtained that the balancing exercise, the evidence is of such importance which would go in. PROSECUTOR: Yes, I would say that the evidence is very probative, your Honour. There's been an assault, its been highly probative. HIS HONOUR: It's highly probative. PROSECUTOR: The importance of the evidence in the proceeding, your Honour, obviously the evidence is very important because these officers give that. They're the only ones who give the evidence in relation to that alleged act by the defendant - the headbutting motion... 65Finally, the defendant submitted that his Honour notionally accepted the force of the submission advanced by the defendant's legal representatives that the evidence was obtained improperly or as a consequence of illegality before he moved to consider the importance of the evidence (which it is clear was a shorthand reference to its probative weight and importance as two of the criteria against which the balancing exercise is to be undertaken): Mr Gibbon (sic) submitted in light of the facts and the authorities the arrest was illegal and unlawful and the illegality and impropriety was sufficiently grave to require exclusion of the evidence. Against that I need to balance the need to apprehend criminals, but I also need to balance against that the rights of all citizens, whether they be committing criminal offences or not. 66Although there was some blurring of the fact finding and evaluative processes in s 138(1), I am not satisfied that this infected the decision to exclude the evidence with legal error. 67I dismiss Ground 6.

Did his Honour err by failing to provide adequate reasons for excluding the evidence of the alleged offences? 68The plaintiff submitted that his Honour's reasons for excluding the evidence of the alleged offence were inadequate, in particular, because he failed to express his consideration of each of the factors in s 138(3). 69In DPP v Sadler [2013] NSWSC 718 at [77]-[82], Bellew J set out the principles underpinning a magistrate's obligation to give reasons, in the case with which Bellew J was concerned, for either dismissing a charge on the ground that there is no prima facie case or because the magistrate is not satisfied beyond reasonable doubt of the guilt of a defendant. Those principles are of equal application where evidence is excluded, the effect of which results in a charge being dismissed for want of evidence. I also accept that it is generally unsatisfactory that an appeal court should have to analyse the exchanges between the bench and counsel during submissions (as the defendant suggested I might do in this case) in an attempt to ascertain a magistrate's reasons (see Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343 (at [18]); DPP v Sadler at [80]). 70It is also well accepted that some allowance should be made for the circumstances in which ex tempore reasons are delivered (see Acuthan v Coates (1986) 6 NSWLR 472 at 485). As Johnson J observed in DPP (NSW) v Illawara Cashmart Pty Ltd: It is appropriate to bear in mind that his Honour's reasons constitute an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate's Court: Acuthan v Coates (1986) 6 NSWLR 472 at 479A, 485C-D. Such a judgment should not be picked over and appropriate allowance should be given to the pressures under which Magistrates are placed by the volume of cases coming before them: Neighbourhood Association DP295386 v Forgeron (2005) NSWCA 150 at paragraph 15; Colosimo v Director of Public Prosecutions (2006) 155 A Crim R 573 at 583. 71Similarly, in DPP v Sadler Bellew J made the following observations at [78]: The Court of Criminal Appeal has consistently said that an overly critical approach should not be taken where ex tempore reasons are given in a busy list, immediately following submissions (see for example Rose v R [2013] NSWCCA 71 at [41] citing Gommesen v R [2012] NSWCCA 226 per Garling J at [37]-[38], McClellan CJ at CL and McCallum J agreeing; see also Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10, per Campbell J at [33], Hoeben CJ at CL and Davies J agreeing). Whilst such observations have generally been made in the context of appeals following sentencing proceedings in the District Court, I accept that they are no less applicable when considering ex tempore reasons delivered in a busy list in the Local Court. 72The defendant submitted that the Magistrate's decision sets out the evidence and the relevant law with sufficient clarity, and that his reasons for excluding the evidence are also clearly discernible. After appropriate allowance is made for the circumstances in which the ex tempore reasons were delivered, the defendant submitted the reasons for excluding the evidence satisfy the test of adequacy at law. The defendant also submitted that his Honour's reasons did not call for an express finding in respect of every fact relevant to the application of s 138 of the Evidence Act. It was sufficient that his Honour's reasons "appraise the parties of the broad outline and constituent facts of the reasoning on which he has acted" (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, per Mahoney JA at 271; R v Associated Northern Collieries (1910) 11 CLR 738 at 740). 73On my view, the Magistrate's reasons in this case are readily distinguishable from the Magistrate's reasons the subject of criticism in DPP (NSW) v AM. In that case, the Magistrate provided no indication as to the basis for his conclusion that the arrest constituted an impropriety within the meaning of s 138. Hall J noted (at [15]) that the transcript recorded the submissions made on behalf of the prosecutor and the defendant. The Magistrate then delivered his decision "in the brief terms as follows": HIS HONOUR: I mean the question, you know, I mean, there's no such thing as preventative arrest yet. No, I think I'll find that it was unnecessary and therefore an arrest undertaken in those circumstances an impropriety and I'll dismiss the resist officer and assault officer on the basis of that. 74Those extremely brief reasons, and the Magistrate's complete failure to refer in his decision to the reasons grounding the exercise of the discretion to exclude the evidence by virtue of s 138(1), led Hall J to find that the Magistrate erred in law in failing to give reasons for the conclusion that was fundamental to the application of s 138. 75I am not satisfied that his Honour's reasons in this case are inadequate amounting to an error of law. In my view, his Honour delivered sufficiently detailed reasons. He outlined the facts, correctly identified the inquiry required by s 138 and the relevant authorities before setting out in a reasoned way the basis for his decision. 76I dismiss Ground 7. 77Grounds 8 and 9 assert that the Magistrate erred in excluding the evidence of the alleged offences, and erred in dismissing the proceedings for the alleged offences. I dismiss Grounds 8 and 9. 78Accordingly, the orders are as follows: (1)The summons is dismissed.

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