Director of Public Prosecutions (NSW) v Merhi

Supreme Court of NSW|2019-08-20|Before: Johnson J

Judgment

JOHNSON J: By Summons filed on 12 April 2019, the Plaintiff, the Director of Public Prosecutions (NSW), appeals under s.56(1)(c) Crimes (Appeal and Review) Act 2001 against the dismissal on 29 January 2019 by a Magistrate sitting at the Fairfield Local Court of a charge against the Defendant, Dany Merhi, of resisting a police officer whilst in the execution of his duty contrary to s.58 Crimes Act 1900.
The proceedings came before the Court today for hearing of the appeal. The Court was informed that the Defendant does not resist the claim for relief contained in the Summons. This is an understandable position given the grounds of appeal and the circumstances giving rise to the appeal which occurred at the Fairfield Local Court.
It remains necessary for the Court to give reasons for allowing the appeal under the Crimes (Appeal and Review) Act 2001. These are not civil proceedings between private litigants of a type which may be compromised or settled as between the parties. The proceedings involve a statutory appeal in criminal proceedings to this Court from the Local Court. Although the Defendant in this case has accepted that error of law is demonstrated, it remains the task of the Court to give reasons explaining why the orders sought by the Plaintiff will be made: Director of Public Prosecutions (NSW) v Soliman [2013] NSWSC 346 at [4]-[9]; Director of Public Prosecutions (NSW) v Barbato [2013] NSWSC 1882 at [4]-[6].
The process of giving reasons may be abbreviated, given the approach of the Defendant, which is an entirely sensible one in the circumstances of the case.

Grounds of Appeal

The grounds of appeal relied upon by the Plaintiff are as follows: 1. Ground 1 - that the Magistrate erred in law by failing to make relevant findings of fact, including as to whether the Defendant committed the acts alleged to constitute the offence charged, as an aspect of his duty to give reasons for his decision; 2. Ground 2 - the Magistrate erred in law by failing to provide adequate reasons for his decision to dismiss the charge; and 3. Ground 3 - the Magistrate erred in law by failing to afford procedural fairness to the prosecutor by dismissing the charge, having found a prima facie case, under the second limb of May v O'Sullivan (1995) 92 CLR 654; [1995] HCA 38, without providing the prosecutor with an opportunity to make submissions regarding whether the offence had been proved beyond reasonable doubt.
As I have noted, the Defendant does not oppose the appeal and accepts that error of law is demonstrated. The Court is likewise satisfied that error of law is demonstrated.
It is appropriate to refer to the evidence before the Local Court, and his Honour's reasons, for the purpose of determining the grounds of appeal. I stress that in undertaking this process, the Court is not seeking to make findings of fact or express a view on the merits of the prosecution itself. The only issues before this Court on appeal relate to alleged errors in the giving of reasons and in the denial of procedural fairness to the prosecutor with respect to submissions. The merits of the prosecution will be a matter for a Magistrate at a future time in the resumed proceedings in the Local Court.

The Local Court Hearing

The evidence may be summarised relatively shortly for the purpose of this judgment. What follows is not an exhaustive summary of the evidence.
Sergeant Scott Simmons was called as the only witness in the prosecution case. The statement of Sergeant Simmons was tendered, together with a DVD recording of the incident in question from his body-worn video camera. In this way, the Magistrate had the ability to observe the entire incident unfolding on the video recording, with that being primary evidence in the case, to be taken with the oral evidence of Sergeant Simmons on associated issues.
On 2 July 2018, Sergeant Simmons accompanied officers from the Tobacco Enforcement Unit ("TEU"), a branch of the NSW Department of Health, on a tobacco compliance operation. The TEU officers and Sergeant Simmons attended a grocery store operated by the Defendant under the name "The Grove Supermarket" in Woodpark. There were four TEU officers and two other officers from the Westmead Public Health Unit.
The TEU officers were said to be executing functions under the Public Health (Tobacco) Act 2008. This Act provides for a power to enter premises for the purpose of inspection (s.44) and contains, as well, an offence of obstructing inspectors and police officers who are exercising functions under that Act (s.47).
The TEU officers and Sergeant Simmons attended the Defendant's grocery store on the morning of 2 July 2018. Discussion took place with respect to their desire to inspect the premises under the Public Health (Tobacco) Act 2008.
Sergeant Simmons explained to the Defendant that he was wearing a body-worn video device which was recording the incident and the conversations. The Defendant said he had a right to refuse the inspection of the premises and further discussions took place.
A point was reached where the Defendant opened a door behind the counter and is said to have briefly entered a room, with Sergeant Simmons close behind him saying "You're not walking in there, come on, you are under arrest. Get out. Let's go. You are under arrest. Let's go". The Defendant left the room and shut the door behind him. Sergeant Simmons said in evidence that, by that stage, he had seen what appeared to be packages of tobacco on the shelves inside the room.
The incident continued with ongoing discussion. The Defendant continued to argue and move around the area behind the counter. The TEU officers indicated an intention to proceed to inspect the premises. The Defendant refused and continued to argue, saying they were not going to search because they were his premises and he needed to close the shop.
When the Defendant saw one of the officers photographing inside the room behind the counter, it is alleged that the Defendant moved towards this officer and away from Sergeant Simmons, who came behind the counter and took hold of the Defendant's arm saying "Come here" and moved him back, but the Defendant returned in the same direction. Shortly after, Sergeant Simmons again tried to take hold of the Defendant's arm but the Defendant pulled away. Sergeant Simmons took out his handcuffs and attempted to place them on the Defendant's left wrist. The Defendant pulled his hand away saying "No, you can't put handcuffs on me" and kept moving his wrist around preventing Sergeant Simmons from handcuffing him. Sergeant Simmons said "You are under arrest. You are resisting arrest".
The Defendant was ultimately taken outside the shop. He was placed inside a police truck.
It is said that a second police officer arrived to assist Sergeant Simmons and asked a question to which Sergeant Simmons replied "No, he was just non-compliant". As a result of the inspection of the Defendant's premises, it is alleged that 6.92 kilograms of tobacco product was seized with an estimated value of $2,620.00.
Sergeant Simmons was cross-examined on a number of issues, including the comment he made to another police officer to the effect that the Defendant was "just non-compliant". There was some explanation by Sergeant Simmons as to what he meant by that comment. He was asked a question by the Magistrate: "Q. Well, that's the proposition that's being put to you now. Is there a difference between resisting and just not compliant? A. That conversation was - my interpretation of it was that he hasn't assaulted me, there's been no assault. The resists is the non-compliance. Being that I've tried to handcuff and he's refused to let me handcuff him, until he's finally let me handcuff him. Well by - I think of - yeah. I couldn't get the handcuffs on and I was trying to get the handcuffs on. I was calling for further assistance. When just one was on."
The prosecution closed its case.
The solicitor appearing for the Defendant made a submission that there was no prima facie case upon the basis that there was no evidence to satisfy the essential element of resist. It was submitted that the evidence was that the Defendant was "non-compliant", not that he had actually resisted Sergeant Simmons in the execution of his duty.
The prosecutor referred in his submissions to the decision of Kirby J in Preece v Boyd (2003) 38 MVR 540; [2003] NSWSC 172, in particular at 549 [50], where his Honour said: "To resist an officer in the execution of his office requires, I believe, some positive action on the part of the person resisting. The action may be in the nature of active or passive resistance. Where it is passive resistance, there must still be some physical action designed to defeat the officer in his efforts to perform his duty. The action may, for instance, take the form of sitting down, becoming inert and refusing to co-operate, or linking arms with others (cf O'Hair v Killian [1971] 1 SASR 1 at 9, 14 and 23; Cavanagh v Galkowski [1979] 20 SASR 322 at 326)."
The solicitor for the Defendant made submissions by reference to the decision of the Court of Appeal in Dowse v State of New South Wales (2012) 226 A Crim R 36; [2012] NSWCA 337 with respect to the exercise of the power of arrest.
Following submissions on the prima facie case, the Magistrate gave a short judgment. It is to be observed that no submissions had been made on what is described as the second leg in May v O'Sullivan at this point. The submission made on behalf of the Defendant was that no prima facie case had been established. The prosecutor sought to meet that submission with a relatively brief submission that there was a prima facie case.
The Magistrate's entire judgment is as follows: "HIS HONOUR: Yes. I am going to proceed on this basis, that I think that the officer was acting lawfully to start off with. He was there for a specific reason to, in effect, support the tobacco people, if I can use that term. He made it very clear to the defendant that he was not going to use handcuffs. The actions of the accused when I look at the video are clearly that he is protesting. He has not given evidence here today, and I am asked to look at it on the basis that there's no prima facie case. I think the view that I take would be that there would be a prima facie case as such, but in light of the responses that he has given, particularly when he is asked by a fellow officer 'Has he been resisting', and he says, 'No, just not complying', in those circumstances I think that I have got a doubt."
The Magistrate then dismissed the charge which had been brought against the Defendant.

Grounds 1 and 2 - Failure to Give Reasons as Required by Law

Grounds 1 and 2 relate to the suggested inadequacy of reasons. The law in this area is clear.
The Magistrate in this case had effectively been sitting as the trial Judge in a summary hearing of a criminal charge. It was the obligation of the Magistrate to give reasons in discharge of the judicial function which was being exercised. The Court has emphasised the obligation upon a Magistrate to give reasons for a decision in criminal proceedings in discharge of the Magistrate's judicial duties, whilst keeping in mind the practical reality of delivery of ex tempore reasons in a busy Court: Director of Public Prosecutions (NSW) v Wililo (2012) 222 A Crim R 106 at 122-123; [2012] NSWSC 713 at [56]-[57].
One of the conventional functions of the requirement to give reasons is that a statement of reasons may be necessary to enable a party to exercise a right of appeal or such other rights as the party may have to contest the decision. Each party to summary criminal proceedings has a statutory right of appeal to this Court under the Crimes (Appeal and Review) Act 2001 arising from the determination of those proceedings in the Local Court. It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain the Magistrate's reasons for determination. The provision of concise reasons as required by law will avoid this circumstance occurring: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402 at 408; [2006] NSWSC 343 at [18]-[19].
I accept that the Magistrate's reasons failed to deal in any way with the evidence presented in the prosecution case, being both the video recording and the evidence of Sergeant Simmons. The prosecution case was that, during the arrest, the Defendant engaged in overt physical resistance whilst being handcuffed. However, the prosecution evidence was referred to in a very brief fashion by the Magistrate in his reasons. His Honour's reasons seem to have focused upon the concept that the Defendant was "protesting".
His Honour then focused upon the discussion which took place between another police officer and Sergeant Simmons where a comment was made that the Defendant was "just non-compliant". There was no reference to the evidence given by Sergeant Simmons where he sought to explain what he meant by that term.
There were no findings of fact made which would have provided the evidentiary foundation for a determination as to whether there was a prima facie case. There was nothing said concerning the element of resist and how it would operate in the context of this case. In these circumstances, I accept that the Magistrate's failure to make any findings of fact about what actually happened was itself an error of law: Director of Public Prosecutions v Evans [2017] NSWSC 33 at [42].
It is necessary to bear in mind, as well, that in this case there was an actual video recording of the whole incident. The utility of police officers in this State wearing body-worn video cameras is demonstrated in this case. In the second reading speech for the Surveillance Devices Amendment (Police Body-Worn Video) Bill 2014 (which enacted s.50A Surveillance Devices Act 2007), the then Attorney General, Mr Hazzard said: "The devices will operate as a modern day equivalent of a police notebook providing for a contemporaneous record of observations and events in the field."
In the past, protracted defended hearings would sometimes take place in the Local Court where persons were charged with offences such as resisting a police officer in the execution of his or her duty. Evidence would be called from a number of persons who would give oral evidence about incidents which were often fluid and dynamic, with allegations of assault, pushing, shoving, swearing and other related activities. There would often be significant controversy as to what actually happened. The fact that Sergeant Simmons was wearing a camera which recorded the event meant that a Court hearing the proceedings has an actual video and audio recording of the whole incident. That, of course, is not the only evidence. Oral evidence may bear upon these matters as well, but there will be a significant reduction in areas of factual dispute in circumstances such as this.
The reasons of the Magistrate did not grapple with the contents of the video and how that was said to fit within the prosecution case as advanced. This was, itself, a significant omission. There was, in my view, a failure to give reasons as required by law even at the prima facie case stage. Although elaborate reasons are not necessarily required for a ruling as to a prima facie case, there is the need for some factual analysis of the case before the Court, and that did not happen. There was then a further failure to give reasons as required by law for the decision to acquit the Defendant.
I am satisfied that each of the first and second grounds should be upheld and that error of law is demonstrated in the ways asserted in those grounds.

Ground 3 - Denial of Procedural Fairness

The third ground of appeal asserts a denial of procedural fairness. As mentioned, the solicitor for the Defendant made a submission that there was no prima facie case. The Magistrate held there was a prima facie case but moved immediately, without calling for further submissions (or, indeed, asking the Defendant whether he wished to adduce evidence), to give further very short reasons leading to the dismissal of the charge.
This Court has made clear that the two-stage process applying at the end of a prosecution case is a formal and important part of criminal proceedings in the Local Court. In Director of Public Prosecutions (NSW) v Wililo, I said at 131 [120] and 132 [122]-[123]: "120 Once again, it is necessary to keep in mind that her Honour was presiding at a criminal trial. The principles to be applied with respect to the determination of a prima facie case, and if such a case was established, the decision whether the charge had been proved beyond reasonable doubt involved two separate and legally different steps. So much is well known and has been emphasised on more than one occasion in appeals to this Court from decisions of her Honour, including Director of Public Prosecutions v Wunderwald, Director of Public Prosecutions v Lee and Director of Public Prosecutions v Elskaf. … 122 Her Honour's rushed decision-making process meant that no assistance was sought from defence counsel appearing in the Local Court, nor did her Honour state what stage of the trial had been reached. As Sully J observed in Director of Public Prosecutions v Wunderwald, these steps are no idle formality. They form an important part of the judicial process at a criminal trial without a jury, where the judicial officer (as the judge of the law), first determines whether a prima facie case exists and then (as judge of the facts), determines by reference to all the evidence, having heard counsel for the prosecutor and the defence, whether the guilt of the accused person has been established beyond reasonable doubt. 123 If a prima facie case is established, the accused person has an opportunity to give evidence or to call witnesses, or to submit that the Court should not be satisfied beyond reasonable doubt of the guilt of the accused person. To rush from one stage to the next, without informing the accused person of the stage that has been reached in the trial, runs the risk of doing an injustice to the defence."
There is, as well, the risk, if not the reality, of injustice to the prosecution. That is what happened in this case. Compliance with the law required the Magistrate in this case, having found a prima facie case, to announce that ruling and to give the Defendant an opportunity to give or call evidence if he so wished. If the Defendant did not wish to give evidence or call evidence, then the matter would move to closing addresses where the prosecutor would have an opportunity to address the Court on all the evidence. That would be the prosecutor's final chance to address the Court. In the circumstances of this case, no doubt there would have been more said by reference to the evidence, in particular by reference to the element of resist.
The approach of the Magistrate denied the prosecutor that opportunity. In fact, it denied the Defendant an opportunity to present a case as well. Given what occurred in the Local Court, there was, in a sense, no disadvantage to the Defendant because the charge was dismissed. However, because of these clear errors, the matter has come to this Court and will go back to the Local Court for a further hearing of the charge.
I am well satisfied that what occurred in this case constituted a denial of procedural fairness to the prosecutor: Director of Public Prosecutions v Elskaf [2012] NSWSC 21; Director of Public Prosecutions v Kirby [2017] NSWSC 1754 at [52]. The third ground of appeal should be upheld.

Conclusion

A proper foundation has been demonstrated for this Court to intervene and uphold the appeal.
The orders sought by the Plaintiff, and consented to by the Defendant, involve the upholding of the appeal and the setting aside of the order made in the Local Court on 29 January 2019, together with an order that the charge against the Defendant be remitted to the Local Court to be dealt with according to law by a Magistrate other than the Magistrate who conducted the hearing on 29 January 2019.
An order of this type is not an automatic order made where an appeal succeeds in this Court. However, given the way in which the hearing proceeded on 29 January 2019 and the findings made by this Court, I am satisfied that it is appropriate to remit the matter to the Local Court to be dealt with by a different Magistrate: Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 at [58]-[62].
I note that, as part of the agreement between the parties with respect to orders, it is agreed that there should be no order as to the costs of the appeal. That is a suitable approach to costs in the circumstances of the case.
Accordingly, I make the following orders: 1. pursuant to s.59(2) Crimes (Appeal and Review) Act 2001, the appeal against the order of Magistrate Miszalski on 29 January 2019 at Fairfield Local Court is allowed; 2. pursuant to s.59(2)(a) Crimes (Appeal and Review) Act 2001, the order of Magistrate Miszalski on 29 January 2019 at Fairfield Local Court dismissing proceedings against the Defendant for the offence of resist officer in execution of duty contrary to s.58 Crimes Act 1900 is set aside, and the proceedings the subject of the appeal are remitted to the Local Court to be dealt with according to law by a Magistrate other than Magistrate Miszalski; 3. the Court makes no order as to the costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2019

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