DPP v Carr

DPP v Carr - [2002] NSWSC 194 - NSWSC 2001 case summary — Zoe

[23]

"Use arrest as the last resort in dealing with offenders. Detain in police custody only after considering all available alternatives eg: infringement notice, summons, court attendance notice etc. Do not arrest someone for a minor offence, when it is clear a summons or alternative process will do." 15 The magistrate further relied on what he deduced Parliament intended when in 1993 it allowed court attendance notices to be given by any police officer and thus in the field. Parliament anticipated that their use would lead to fewer arrests and fewer offenders being taken into custody. He also relied on what was described as a press release by the Police Minister, the Police Association and Acting Inspector York for the NSW Police Service. The magistrate believed that this was referred to in the Minister's Second Reading Speech. This is not correct. I could not find any such reference in the Speech. 16 The magistrate applied the meaning he had given to improper. He took into account the statements of the higher courts earlier mentioned, the Police Service Handbook, the second reading speech and the other secondary materials as to the purpose of FCANs, and these factual considerations, namely, the maximum penalty for the offence was a fine, there was no issue of public safety, there was no evidence of anything exceptional to justify diversion from the Handbook, the officer knew Mr Carr's name and address, did not consider a summons or any process that was absent arrest, did not use arrest as a last resort, had not read the Handbook and that a process not requiring arrest was not chosen because it was "far quicker" to arrest and then issue a field court attendance notice. The magistrate said that all this satisfied him on the balance of probabilities that the arrest was improper and that there was more than a mere technical breach. The magistrate said that he did not doubt the officer's integrity or honestly held belief regarding his actions. Nor did the magistrate wish to be unduly critical of the officer who was in a difficult situation.

[26]

19 Ground 2 - The evidence before the Local Court and the magistrate's findings did not enable a finding of "impropriety" under s.138(1) of the Evidence Act 1995. These grounds will be considered together. 20 The DPP reminded the Court that a finding of impropriety can have potentially serious consequences upon a criminal prosecution and that there is a legitimate public interest in the conviction of those guilty of crime. The DPP submitted that in describing conduct which was improper but not necessarily unlawful Mason CJ, Deane and Dawson JJ in Ridgeway v The Queen (1994-1995) 184 CLR 19 at 36 necessarily required bad faith and an abuse of power in such conduct. In the context of examining the matter of entrapment and what might amount to conduct which is improper their Honours said: " … circumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. Extreme cases of creating circumstances of temptation under which a vulnerable but otherwise law-abiding citizen commits an offence of a kind which (so far as the police are concerned) he or she might not otherwise have committed provide possible examples. As the Supreme Court of Canada pointed out in R v Mack 'there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions.' The rationale of the discretion requires that it extend to cases where those 'inherent limits' are exceeded." 21 Their Honours were dealing with a special area of the law and as I read their judgment I would not be prepared to go as far as the DPP suggests. I agree that in the context in which the Justices were speaking they had in mind an impropriety of a substantial kind. A serious offence had been committed. At 37 the Justices said: "The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in a criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community." 22 Again the Justices were dealing with instances of entrapment and analogous cases which perhaps fall short of entrapment. I doubt if they were intending to deal with every set of circumstances which may raise questions of impropriety. Their statement was probably not meant to be exhaustive but it does indicate the degree of impropriety required where serious offences are involved. Ridgeway involved a serious drug offence. With minor offences, any impropriety is likely to be of a lesser order with lesser consequences. Nevertheless, it will be important. As the Justices pointed out the enquiry is whether what was done (or not done) is inconsistent with minimum standards of acceptable police conduct in all the circumstances. The Justices did not attempt to define what "improper" meant.

[66]

67 The magistrate recorded that the prosecution contended that the offences alleged were not as a result of the improper conduct of the police, that is, the ill-advised arrest, but as a result of Mr Carr exercising his own will and acting accordingly. It was described as an "intervening will". Mr Carr submitted that the Court should apply the "but for" test, that is, but for the arrest the subsequent events would not have occurred and the evidence would not have been available. The magistrate held: (T12 of 19/5/00) "I am satisfied on the balance of probabilities that the evidence that's sought to be excluded is in consequence of the impropriety, and … I believe that the correct test to apply is to ask what would have happened if the impropriety, ie the arrest, had not occurred. More importantly the reason that the defendant resisted and assaulted police … is a direct consequence of him being placed under arrest, there's no suggestion he was violent before he was placed under arrest … , and the words are only used and he's only there because he's been arrested and taken back to the police station. … Accordingly, I find that the evidence was obtained in consequence of an impropriety. … … this case is unique. I can't see any other case where concrete physical evidence has sought (sic) to be excluded as a result of impropriety except for the search warrant cases that really relate to illegality … but … the same rules apply as for admissions or anything else really that happened back at the police station … " 68 I would read the remarks of the magistrate as being confined to the facts of the present case. They should not be applied more broadly. The magistrate was dealing with the well known trilogy of an ill-advised arrest where a summons should have been employed, resist police and assault police and, as so often happens, the utterance of coarse threats by a moderately intoxicated man. This is not an unusual sequence of events. They are closely related and interconnected. However, if the offences were moderately serious to serious and disproportionate to an ill-advised arrest it would not be possible to contend that the evidence of such offences was obtained in consequence of an impropriety. A question of degree is involved. This is not completely satisfactory as it does give rise to debate at the margins.

[67]

69 Section 138(1) contains a threshold which a defendant (party) must cross before the court proceeds to decide whether 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. 70 I have found Grounds 5 and 6 hard to resolve and my mind has fluctuated. Not without considerable doubt I have concluded that on the facts as found by the magistrate he was entitled to reach the conclusion which he did. All the offences were closely related and interconnected and at the lower end of the criminal scale. The offences and the evidence stemmed from the ill-advised and unnecessary arrest. A narrow construction should not be given to s.138(1)(a) and (b) nor one that is unduly broad. This is not the kind of case to apply the "but for" test except in the restricted way outlined above. 71 The Court was informed that the offensive language charge was dismissed, but neither party suggested that this bore upon the issues which this Court has to consider. The language allegedly used, although unfortunately quite widespread, is to be regretted. It was for the magistrate to decide whether in the circumstances its use was criminal, that is, it was by community standards, offensive language as distinct from socially undesirable. All this underlines the undesirability of using the power of arrest in the circumstances which prevailed. 72 I reject the challenge based on grounds 5 and 6. 73 Ground 7 reads: "his Worship erred in finding recklessness for the purpose of s.138(3)." The DPP contended that on the magistrate's findings of fact it was not open to him to find that Cons Robins had acted recklessly. The magistrate, pursuant to s.138(3)(e), considered whether the impropriety was deliberate or reckless and said: "I previously found that the impropriety was not deliberate - the officer had not read the handbook and clearly believed he had acted properly. The concept of recklessness is apparent." 74 The DPP relied on the meanings of "reckless" found in the Macquarie Dictionary, namely: 1. utterly careless of the consequences of action; without caution 2. characterised by or proceeding from such carelessness. The Shorter Oxford English Dictionary gives these meanings: 1. of persons: careless of the consequences of one's actions; heedless (of something); lacking in prudence or caution

[78]

84 In Ridgeway at 38 Mason CJ, Deane and Dawson JJ said, amongst other things, that the public interest in ensuring minimum standards of propriety by those entrusted with powers of law enforcement "will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the … improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force." The magistrate quoted from this passage and continued: "On a micro level the majority of offensive language charges that come before me involve an arrest. This is clearly tolerated by senior local police On a macro level, there are innumerable articles, comments from the bench and Royal Commission findings regarding arrest and the 'trifecta'. These are well summarised in a recent publication of the Aboriginal Justice Advisory Council titled 'Policing Public Order - Offensive Language and Conduct, the Impact on Aboriginal People'. In 1999 there were 5,438 prosecutions for offensive language in New South Wales. Less than 10% were initiated by summons. The number of offensive language incidents recorded by NSW police rose 37.7% from 1997/98 to 1998/99 (BCSR brief, Aug 1999). In Wellington in 1999 only 3.4% of offensive language charges were initiated by summons. On a micro and macro level, arrest for offensive language is the norm, it is tolerated by senior members of the police and in this case it was not used as a last resort." 85 This material was used by the magistrate in reaching his conclusion that the impropriety was serious but it was not tendered in evidence. The magistrate did not bring it to the attention of the parties. There was room for debate whether the statistics in the report of the Aboriginal Justice Advisory Council earlier mentioned were admissible, unless proved in the usual way. The magistrate was entitled to rely on his own experience from sitting in court provided he told the parties what it was and gave them the opportunity to reply and deal with the matter.

At a glance

Court

Decision date

Before

Source

Judgment (85 paragraphs)

Parties

Cases Cited (5)

Cited By (27)