DPP v Carr

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

S 12175 of 2000 SMART AJ Friday, 25 January 2002 DIRECTOR OF PUBLIC PROSECUTIONS v LANCE CARR JUDGMENT 1 The Director seeks an order pursuant to s.109(a) of the Justices Act 1902 quashing the orders of the magistrate dismissing informations laid against Mr Carr for resisting police, assaulting police, and intimidating police, a declaration that the magistrate erred in law as to the construction and application of s.138 of the Evidence Act 1995 in refusing in the exercise of his discretion to admit the evidence of Constables Robins and Smith relating to the charges mentioned and a declaration that the magistrate erred in law in dismissing the informations. The Director asked that each of the matters be remitted to the magistrate to be dealt with according to law.

2 At the hearing before the magistrate on 27 October 1999 a voir dire was held. The magistrate reserved his decision which he gave on 18 November 1999. He held that the evidence relating to resisting police, assault police and intimidate police was obtained in consequence of an improper act, namely, the arrest of Mr Carr for an offensive language charge. On 19 May 2000 he heard argument as to the way in which he should exercise his discretion under s.138 of the Evidence Act 1995. He held that the evidence should not be admitted. He was not persuaded that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence obtained in the way in which it was. Both these findings by the magistrate are challenged.

3 The magistrate found that Mr Carr was arrested for swearing at a policeman. He was subsequently charged with the further three charges earlier mentioned. The maximum penalty for offensive language at the time of the alleged offence was a fine of $660. It is at the lowest end of the criminal scale.

4 On 25 February 1999 Cons Robins was on vehicular patrol in Wellington. He gave the following version of the facts. He saw Mr Carr and a female standing in the roadway and a number of rocks being thrown towards them. He saw Mr Carr throw a rock towards the residence from where the rocks were coming. A rock was thrown and hit the police vehicle. He left the vehicle and asked Mr Carr and the female a number of times who had thrown the rock at the police vehicle and Mr Carr refused to tell him. Mr Carr appeared to be moderately affected by liquor. The constable was under the impression that Mr Carr thought that the constable was accusing him of throwing the rock. This was not so. An argument ensued between the constable and Mr Carr used the term "fuck this" or something similar. The constable could not remember the exact words. Shortly after that Mr Carr commenced to walk away yelling and swearing. The constable said that he cautioned Mr Carr and told him to calm down and stop swearing. Mr Carr continued to walk away, then turned back and said "Fuck you. I didn't fucken do it, you can get fucked." The constable replied, "Lance, you are under arrest for offensive language." The constable stated that the words that led to the arrest were stated in the middle of Marsh Street about a metre or two from him. There were about five other adults in front of other residences. Mr Carr was facing the constable and the words were said in a hostile, aggressive manner. The constable said that in his view Mr Carr was being unco-operative by failing to tell him who threw the rock.

5 The constable said that when he told Mr Carr he was under arrest he (the constable) took a number of steps towards Mr Carr and took him by the arm as he tried to walk away. Mr Carr pushed him in the chest, broke free and ran. The constable said that he gave chase for about 25 metres and tackled Mr Carr. There was a general melee involving others. The constable said that after a short struggle he managed to restrain Mr Carr who stood calmly and walked towards the rear of the police vehicle. Cons Robins said that as Mr Carr neared the door he pushed him (Robins) again in the chest putting him off balance. Cons Robins said that he was still holding Mr Carr as he reached forward, took hold of the constable's shirt pulling him to the side, causing the front of his police shirt to tear. Cons Robins said that he tried to pull Mr Carr towards the rear door. However, he broke free from the constable's grip and ran down the side of the police vehicle. The constable took hold of Mr Carr near the driver's door and called for urgent assistance via the police radio. He then pulled Mr Carr back to the rear of the police vehicle and placed him partially within it.

6 Cons Robins had been a police officer for five years. He knew Mr Carr as a long term resident of Wellington and where he lived. There was no question as to his identity and his usual place of residence. Cons Robins was aware that it was open to him to proceed by way of summons or a field court attendance notice (FCAN).

7 In his evidence in chief Cons Robins said that eventually at the end of the day he ended up charging and bailing Mr Carr. This passage occurs: "Q. At any stage during that period were you gong to issue Mr Carr any field court attendance notices?

A. My intentions were to issue both persons [Mr Carr and another man] with field court notices, until Constable Smith brought to my attention a conversation which was had between himself and the defendant." In that answer Cons Robins has telescoped the events that occurred in Marsh Street and those that occurred in the police station. The position was clarified in cross-examination.

I interpolate that Cons Smith said that while in the dock at the police station Mr Carr became agitated and said to him: "I'm going to get you knocked, you go to Sydney I'll get you killed, you and that other cunt, I'm going to kill your kids and I'm going to kill you, I'm going to get my brothers to cut your throat, I'm going to kick the cunt right out of you." 8 Cons Smith conveyed the essence of what Mr Carr allegedly said to Cons Robins. It is still to be resolved whether this was the bluster of an angry man affected by alcohol, never intended to be carried out, or something more serious.

9 In cross-examination Cons Robins said that he did not proceed by way of summons because he had the field court attendance notice book in the police vehicle "and it's by far quicker to issue it on the roadside, than what is to later go and find the defendant and try and serve it on him at his residence." The constable also said that he did not issue the defendant with a field court attendance notice because "the defendant continued to walk away from me, which is the main reason why I placed him under arrest to take him back to the police vehicle, and at which time the incident escalated a little bit further, and it was no longer viable for me to do so on the roadside." Cons Robins agreed that he did not tell or ask Mr Carr to wait while he (Robins) gave Mr Carr a field court attendance notice as he was taking steps backwards and away from the constable,

10 Cons Robins agreed that he could have told Mr Carr that he would be reported for offensive language and typed out a breach report. Cons Robins said: "It was open to me to allow him to walk away, but he continued to yell offensive language, which is the reason why he was arrested … if I allowed him to continue to walk down the street yelling abuse towards a police officer, the offence would continue, and that's the reason why he was arrested."

Cons Robins said that he did not consider the option of a summons but he did consider the option of a field court attendance notice. Cons Robins agreed that he could have let Mr Carr walk away and later attended his residence and issued him with a field court attendance notice or served a summons which he had caused to issue. He did not take either of these courses because the offence was continuing. He reiterated that he had no intention of summoning Mr Carr. This was because he had the option of issuing a field court attendance notice. The constable agreed that the issue of such a notice did not require him to arrest Mr Carr.

11 The magistrate held that the arrest of Mr Carr was not unlawful because of s.352 of the Crimes Act 1900. He also referred to s.100AD(4) of the Justices Act 1902 which provided that the issue of an attendance notice does not render unlawful the arrest of the person to whom the notice is directed. The magistrate found that the stated purpose of the arrest in the first instance was the issue of a court attendance notice and then to stop the offence continuing. The magistrate concluded: "The defence has failed to satisfy me that the arrest was unlawful. This is due to the officer's evidence regarding the continuation of the offence."

12 The magistrate correctly next considered whether the evidence was obtained improperly or in consequence of an impropriety within the meaning of s.138 of the Evidence Act 1995. He sought to ascertain what the word "improperly" meant in the context of s.138. He held that it means "an act that is highly irregular, impermissible or clearly inconsistent with standards of acceptable police conduct and that the test was objective. The magistrate next relied on a series of cases in the Court of Appeal, this Court and the Federal Court to the effect that for the great majority of people, arrest is equivalent to an additional penalty and should not be used where the issue of a summons will suffice.

13 He also relied on the statement of the Court of Appeal in Fleet v District Court & Ors: 1999 NSWCA 363: "Lawfulness of arrest is one thing, appropriateness is another. Nevertheless it is difficult to understand how it could have been thought appropriate to exercise any available power of arrest in the present circumstances where Mr Dymond and the third opponent knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing." The magistrate commented that the inappropriateness must be even greater where the maximum penalty is a fine, especially one of $550 (sic). The magistrate also applied the statement in Daemar v Corporate Affairs Commission, unrep. 4 September 1990, CA 40359.89 that the proper course to be taken by the police where the offence is minor, the name and address of the alleged offender are known and there is no reason to believe a summons would not be effectual is to proceed by way of summons.

14 The magistrate also relied on three passages from the guidelines in the Police Service Handbook: "Remember, arrest is an extreme action. Keep in mind other means of getting someone to Court (eg: summons, CAN)"

"Do not arrest someone for a minor offence when a summons would get them before court. Do Not use CAN's to circumvent proceedings by summons."

"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.

17 Before turning to the particular grounds on which it is alleged that the magistrate erred I should note the general submissions of the DPP: (a) A constable has a discretion to arrest without warrant any person whom he with reasonable cause, suspects of having committed any summary or indictable offence: s.352(2)(a) Crimes Act 1900 , Hazell v Parramatta City Council (1968) 1 NSWR 165 at 178-181. (b) In cases where an offence is threatened or is actually being committed or where the offender is apprehended immediately or on fresh pursuit after the offence, powers of arrest without warrant have long been recognised by the common law or by statutory provisions as necessary to prevent injury to the person or property of others, to preserve the peace or identify the wrongdoer [Deane J in Donaldson v Broomby (1982) 60 FLR 124 at 126]. (c ) Arrests are frequently made in circumstances of excitement, turmoil and panic. Minute retrospective criticisms should not be made of decisions made on the spur of the moment. (d) While the desirability of police proceeding by way of summons rather than arrest with respect to summary offences has been emphasised in a number of cases, none of them involved the exercise of the power of arrest in the context of a continuing public order offence in a public place.

18 Ground 1 - his Worship erroneously defined the word "improper" for the purpose of s.138.

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.

23 The DPP submitted that the magistrate erred in law in defining the word improper in s.138 in that he: (a) determined that the test for such conduct was purely objective. The DPP submitted that for "lawful conduct" to be "improper" under s.138, a subjective element was required involving, at least, consciousness on the part of a police officer that his actions constituted an abuse of power (b) failed to attribute to the word "improper" the essential element of intentional wrongdoing or abuse of power which was necessarily inconsistent with the performance of police duties with integrity and in good faith (c) misapplied Ridgeway by excluding from the meaning of "improper" portions of the judgment which pointed to intentional wrongdoing or abuse of power which are necessarily inconsistent with an officer acting lawfully, with integrity and in good faith, namely, concepts of "harassment" and "manipulation". 24 In further submissions the DPP submitted that impropriety involves an element of moral turpitude or blameworthiness, such as an element of sharp practice or trickery or conduct that was underhand. More than a breach of good practice was required. It was further submitted that it was a rare case where a lawful arrest could be described as improper.

25 Mr Carr discounted the DPP's use of the phrase "continuing public order offence in a public place" and the contention that where this occurred the exercise of the power of arrest was proper. Mr Carr pointed to Lake v Dobson (NSWCA, 19 December 1980, Petty Session Review 2221) and submitted that it revealed conduct capable of falling within the description "continuing public order offence in a public place". The defendants were arrested and charged with offensive behaviour in a public place. They were sunbaking in the nude at Thompson's Bay, a narrow bay with a small beach and recreation reserve to the north of Coogee Beach. Samuels JA, with whom Moffitt P and Hope JA agreed, while appreciating that "this type of offence is capable of constituting, as it were, a continuing offence commented: "… it can scarcely be regarded as ranking high in the criminal calendar. [Arrest] is a means of setting the criminal process in train which should be reserved for situations where it is clearly necessary, and should not be employed where the issue of a summons will suffice." 26 Mr Carr submitted that before an arrest should properly be made for offensive language there would need to be an actual or likely or potential breach of the peace. "Breach of the peace" means more than merely words or offensive language. It was further submitted that where the facts are simply that offensive words are being used, although the power of arrest exists, it is improper to effect an arrest where there is no harm (in the sense of physical harm) being done or likely to be done.

27 Mr Carr submitted that there is no need to define improper as what is improper will vary from case to case and will be determined by reference to the relevant facts and circumstances of each case. That submission is correct. Mr Carr relied upon the observations of Lord Upjohn in Customs & Excise Commissioners [1969] 1 WLR 1163 at 1171 that it is virtually impossible to attempt to place an accurate definition upon a word in common use and that the task of the Court - "… is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament." 28 Mr Carr submitted that it was inappropriate to apply the concept of "improper" as discussed in Ridgeway to a case concerning offensive language as Ridgeway involved questions of entrapment and a serious drug offence for which the maximum penalty was imprisonment for 25 years. I agree. The observations of the Court in Ridgeway must be read in the light of the facts. The requirements of harassment or manipulation were appropriate to the facts and offence charged in Ridgeway.

29 Mr Carr contended that importing the concepts of "bad faith and abuse of process" was placing the test too high for a case of offensive language.

30 As to the DPP's submission that for lawful conduct to be improper a subjective element is required involving at least consciousness on the part of the police officer that his actions constitute an abuse of power, Mr Carr submitted that the subjective element, if relevant at all, was only relevant to the factors that may be considered pursuant to s.138(3) once an impropriety has been found.

31 The Australian Law Reform Commission Report which preceded the Evidence Act 1995 reviewed the then existing discretion to exclude improperly obtained evidence including the public interests supporting admission and those supporting exclusion. The ALRC did not discuss what "improperly" meant. It recommended that an approach based on the existing discretionary approach be adopted. It suggested that the conflicting concerns in this area and the wide variety of circumstances necessitated such an approach. It proposed some changes. It recommended that the nature of the conflicting interests which should be balanced should be indicated precisely and the articulation of factors which should be taken into account in the exercise of the discretion. The report adopted the comment of Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 74 that what is involved "is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy."

32 The report listed a number of factors which it suggested were relevant to the balancing discretion. It was pointed out that if the impropriety was the result of a mistaken belief by an officer that he was entitled to do what he did this would tend to reduce the seriousness of the misconduct. However, it was noted that it was largely irrelevant to the criminal suspect that his rights were infringed deliberately or mistakenly. He has suffered the same damage regardless of the mental state of the officer.

33 The recommendations of the Law Reform Commission have largely been embodied in s.138. Among the matters that the Court is to take into account under s.138 is the nature of the relevant offence and the nature of the subject matter of the proceeding and the gravity of the impropriety.

34 Section 138(2)(a) deems evidence of an admission and evidence obtained in consequence to have been obtained improperly if the questioner knew or ought reasonably to have known that the act or omission of the questioner was likely to impair substantially the ability of the person being questioned to respond rationally. Section 138(2)(b) also deemed evidence to have been obtained improperly if the questioner made a false statement knowing or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person being questioned to make an admission. Actual knowledge is a subjective matter. The test of "ought reasonably to have known" is objective. Put very broadly, s.139 provides that for the purposes of s.138(1)(a) evidence of a statement made or an act done by a person during questioning or official questioning is taken to have been obtained improperly if the questioner does not administer a caution. Questions of knowledge or intent are not relevant under s.139. Under s.138(1) and (3) it is not necessary for there to be the subjective element of bad faith or abuse of process or abuse of power or intentional wrongdoing in relation to the offence of offensive language. Section 138(2) and s.139 indicate that the word "improperly" and the phrase "in consequence of an impropriety" should not be narrowly construed.

35 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 of 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.

36 The DPP submitted that the findings of fact made by the magistrate, at their highest, constitute criticism of Cons Robins for not following what the magistrate considered to be good practice in the circumstances. The magistrate found that the constable had acted lawfully, with integrity and in good faith. The DPP submitted that the magistrate's findings did not satisfy the statutory test of improper. From what I have written it is apparent that I am unable to agree with this submission. The initial decision to arrest was born of expediency. It was open to the magistrate to make this finding: "Thus the evidence is that at the time of the arrest officers intention was to arrest a drunk, hostile, aggressive swearing man, take him by force to the vehicle and issue him with a roadside field court attendance notice. A process not requiring immediate arrest was not chosen because it was 'far quicker' to arrest and then issue a field court attendance notice." 37 Cons Robins arrested Mr Carr after he allegedly used the words earlier quoted and continued moving away. It is hard to resist the conclusion that in the present case the officer did not issue a summons because that procedure involved him in more work and took far more time. The actions of the officer, as he must have realised would happen, escalated the incident and led to the alleged commission of further offences. 38 I would reject Grounds 1 and 2.

39 Ground 3 is to this effect: "his Worship stated a proposition of law, namely that the desirability of police proceeding by way of summons rather than arrest with respect to summary offences, which he then purported to apply in a manner which excluded from consideration critical legal factors surrounding the exercise of the power of arrest."

40 The DPP's complaint is that the magistrate failed to have regard (or perhaps sufficient regard) to the law concerning the duty and discretion of a constable with respect to public order and the discretionary exercise of powers of arrest. The magistrate expressly took into account s.352 of the Crimes Act 1900 and s.100AD(4) of the Justices Act 1902 when dealing with the question whether the arrest was lawful. He held that it was lawful. This was primarily because of the evidence of Cons Robins that the appellant continued to use offensive language. The magistrate reviewed the cases as to when a summons should be issued. He recognized that Cons Robins was in a difficult situation. One difficulty for the DPP is that the decision to arrest was made as Mr Carr moved away and his utterance of the words earlier quoted. Further words were, according to the constable, uttered by Mr Carr shortly afterwards. It was a classic case for issuing a summons and not inflaming the situation.

41 I am not persuaded that this ground has been established.

42 Ground 4 reads: "his Worship erred in law (a) by excluding from consideration for the purpose of his finding of 'impropriety' relevant parts of the second reading speech of 21 April 1993 concerning the Justices (Amendment) Act 1993.

(b) by denying the prosecutor procedural fairness in relying upon a journal article in reaching a finding of 'impropriety' in circumstances where the article was not in evidence and his intention to rely upon the article was not communicated to the prosecutor." 43 A word or explanation is required. That is to be found in the Minister's second reading speech on introducing the amending legislation. Prior to 1993 the Justices Act 1902 permitted court attendance notices (CAN) to be issued as an alternative to charging offenders. Under s.100AA the issue of a CAN had to be authorised by a member of the Police Force above the rank of sergeant or, for the time being in charge of a police station. This meant that generally an offender had to be taken back to the police station for the issue of the notice to be authorised. The amendment allows any police officer to issue a CAN to an offender where it was assessed that it was not appropriate to arrest and charge the offender. Thus officers in the field could issue such notices. The Minister hoped that the change would result in fewer offenders being taken into custody. The new scheme would be available only for a category of most common, less serious prosecutions including both summary offences and some indictable offences that could be dealt with summarily.

44 Part 4, Division 3 of the Justices Act deals with Attendance Notices for Indictable or Summary Offences. Section 100AB provides that where an information may be laid before a Justice against any person: (a) under section 21 for an indictable offence, or (b) under section 52 for an offence for which the person is liable to be punished upon summary conviction a member of the police may issue a notice for the attendance of the person. There are provisions as to the contents of the notice and its service. The notice may be issued and served in the field shortly after the offence or later and also before or after an arrest. Section 100AB does not contain restrictions on the issue of a notice where there has been a summary or indictable offence. The issue and service of a notice is left to the discretion of the police officer dealing with the alleged offence.

45 The DPP contended that the second reading speech appeared to have been a critical factor in the magistrate's conclusion that the arrest of Mr Carr was improper. I would not put the matter so strongly. It was one of the matters on which the magistrate relied as he stated, "Further still, the arrest is inconsistent with the purpose of FCAN's as intended by Parliament and the Police Service itself."

46 The DPP complained that the magistrate had quoted selectively from the Minister's Speech in that he had omitted the Minister's statement that the police would continue to make arrests where it was necessary to prevent a continuation of the offence and that a court attendance notice would not be issued where the alleged offender was incapacitated due to intoxication. It should not be assumed that the magistrate did not take into account the whole of the Minister's Speech. Earlier in his reasons the magistrate revealed that he understood the importance of preventing the continuation of an offence. It was for that reason he held that the arrest was lawful. The point which the magistrate was making was that the incidence of arrest should be reduced and confined to those cases where there was no other reasonably practicable alternative and that generally the power of arrest should not be used for minor offences. The complaint that the magistrate excluded from consideration, for the purpose of his finding of "impropriety", relevant parts of the Minister's second reading speech cannot be sustained.

47 As to the article (said to be a joint press release by the Police Minister, the Police Association and Acting Inspector York) and published in the Law Society Journal (NSW) of April 1997, that could not and should not be used to throw light on the meaning of the Justices (Amendment) Act 1993. The article is stated to be by Acting Inspector York. She wrote that the general concept was simple. It involved police carrying around a book similar to Traffic or Parking Infringement Notices, and they could issue these tickets or notices to offenders requiring them to attend court. This process replaced the need for arrest and taking the person to the police station for charging or then serving them with a CAN. In effect, the serving of an FCAN simplified the whole procedure of getting people into the appropriate forum. It also alleviated the concern over the power of arrest being inappropriately used for those offences which are minor, and involve people who, on the whole, would satisfy unconditional bail requirements to attend court. While for ease of understanding the article refers to FCANs the statute refers to CANs (court attendance notices).

48 The article explains when it would be appropriate for police to issue an FCAN, and by inference when it would not be. It states that the police officer will apply his discretion to each situation on its elements whether to issue and serve an FCAN or make an arrest. It is not suggested that Cons Robins was aware of the article but it represents good police practice.

49 It is unfortunate that the magistrate did not discuss the article with the police prosecutor. However, the article covers some of the ground in the Police Service Handbook and some in the Minister's Speech. The article is, in some respects, more explicit. It refers to limitations placed in practice upon the use of CANs and stated by inference that it would not be used where it is necessary to remove an offender to prevent "a continuation of the offence of a breach of the peace." It is an article about which the police may have wished to make submissions or perhaps led evidence.

50 Grounds 5 and 6 read: "5. 'his Worship erred in finding that the evidence of events following the defendant's arrest was obtained so as to fall within s.138(1)"

6. "his Worship erred in finding that the evidence of events following the defendant's arrest was 'obtained in consequence of an impropriety for the purposes of s.138(1)(b)" These grounds will be considered together.

51 The magistrate found that the evidence relating to resist police, assault police and intimidate police was obtained in consequence of an impropriety in the sense that the actions and words that flowed after the words "you are under arrest" would not have occurred had the officer not acted improperly.

52 The DPP advanced separate submissions as to the meaning of "obtained" and "in consequence of an impropriety". The DPP submitted that the arrest of Mr Carr was followed by acts on his part which gave rise to the charges of resist police, assault police and intimidate police and that the mere fact that his words and actions followed in time the alleged "impropriety" did not mean that the evidence of those matters was "obtained" for the purpose of s.138(1) of the Act. I agree. The DPP submitted that s.138 was directed at unlawful or improper conduct which is intended by those engaging in such conduct to elicit evidence to be tendered against a defendant in proceedings and that s.138 was not directed at a situation where impropriety or illegality occurs and conduct which is said to constitute a crime, merely follows it in time.

53 Reliance was placed on the first meaning of the definition of "obtain" in the Shorter Oxford English Dictionary, namely "to procure or gain, as the result of purpose and effort; hence generally, to acquire, get". The DPP submitted that this meaning was supported by Ridgeway at 37.8: "as with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged." 54 The Court was speaking of improper conduct. The DPP emphasised the word "procured" and submitted that the evidence of Mr Carr's acts was not procured by the arrest. The DPP further submitted that the issue could be tested in this way. If another police officer or a civilian eye witness to the incident was called by the prosecution it could not have been submitted that their evidence should be excluded under s.138 of the Evidence Act.

55 The DPP submitted that a causal link was required between the evidence sought to be excluded and the impropriety alleged and that no causal link existed in the present case.

56 The DPP contended that the error in the magistrate's reasoning was demonstrated by his exclusion of evidence of the later incident in the police station as that evidence could not, as a matter of law, be said to have been obtained by the officer or obtained in consequence of "the impropriety alleged." There was simply no causal link between the arrest of Mr Carr by Cons Robins and Mr Carr's use of threatening language towards Cons Smith later in the police station. It was submitted that it was not Cons Robins' intention, at the time of arrest, to take Mr Carr to the police station. Further, Mr Carr did not give evidence on the voir dire to explain his reasons for resisting Cons Robins and otherwise acting and speaking as he did following the arrest. The DPP submitted that even if the arrest was improper the evidence of the defendant's words and acts which followed the arrest were not obtained "in consequence of the impropriety".

57 Mr Carr relied on these observations of Spigelman CJ (with whom Newman and Greg James JJ agreed) in R v Haddad & Treglia [2000] NSWCCA 351 at paragraphs 73-74 "The formulations 'obtained improperly' and 'obtained in contravention' are not terms of art. The nature of the causal relationship between 'an act of impropriety' or 'contravention' and the evidence said to have been 'obtained' either directly or 'in consequence of' an 'impropriety' or 'contravention' is not the subject of any authoritative decision. The Crown's basic premise is that the requisite causal relationship cannot exist if the 'evidence' - relevantly a tape recording of a conversation - has been brought in to physical existence at a time prior to any contravention of impropriety. It is by no means clear that s.138 must be given so restrictive an ambit." Mr Carr submitted that implicit in these remarks is a broad approach to s.138. 58 Mr Carr further relied on the judgment of Bleby J in Robinett v Police No. SCGRG-00-110 [2000] SASC 405 where there was, inter alia, a failure to provide adequate medical treatment to the defendant. The judge said: "The appellant's increasingly offensive language and ultimately the threats directed at Senior Constable Smith would appear to have been a direct consequence of a number of factors. The first was the ongoing irritation to his eyes caused by the capsicum spray. Second was the ignoring by police of his concerns over asthma and his requests for a doctor. There was his enforced confinement in the holding cell and, of course, the appellant's intoxication. Absent any one of those factors, the words in question may not have been uttered, One would have to conclude that the failure to respond to the requests for assistance was a contributing cause to the ultimate threats and abusive language.

The failure by the police to respond was not unlawful. Was it improper, such as to call for the exercise of a discretion to reject the evidence of the conversations which followed? Three questions arise for consideration. The first is whether the conduct is of a type that could give rise to the exercise of the public policy discretion. Second is whether the conduct caused or contributed to the commission of the offence. If the answer is 'yes' to both those questions, it must then be asked whether it called for the exercise of the discretion to exclude the evidence." and "The evidence must therefore have that necessary disqualifying element, or an element that justifies the court expressing its disapproval of the conduct, not merely by verbal expression of disapproval, but by imposing a sanction against the conduct by declaring inadmissible the evidence thereby obtained." … The conduct complained of does not consist of any deliberate act, or indeed or any act at all. The complaint is of an omission - a failure to respond in any way to a request." … "In my opinion this was an omission which was not only inappropriate, but which fell into that category of impropriety or unfairness that gives rise to the exercise of the public policy discretion. It was a neglect which, if allowed to persist, was almost certain, in the circumstances, to give rise to the type of offending which in fact occurred on this occasion. I repeat: I do not consider that the police officers in this case allowed the situation to develop merely for the purpose of encouraging the commission of another offence. However, their inaction almost inevitably had that effect. As to the second question, I believe in the light of the observations that I have made about the events in question, that the failure to react did cause or contribute to the commission of the alleged offences."

Bleby J held that the omission called for the exercise of the discretion to reject the evidence. He continued: "The conduct was not illegal. On the part of the police officers, there was probably not even a conscious apprehension of the impropriety or unfairness. There was nevertheless a conscious failure to act when some ameliorating steps could have been taken … It is not insignificant that the conduct had the effect, not of bringing to light evidence of some past offence, but of contributing to the commission of fresh offences."

59 The judge stated that in weighing the conflicting public interests involved in the exercise of the court's discretion, the court was permitted to have regard to the circumstances in which the offence was committed. The judge further said: "Whilst I am prepared to accept, for present purposes, that, if the evidence were admitted, the offences could be proved, it must be accepted that the threats were substantially influenced by the intoxication of the appellant, and were not necessarily those which he would utter, let alone be likely to carry out, when sober. In my opinion, the circumstances are not such that the public interest in securing a conviction for that type of offence, committed in those circumstances, outweighs what would otherwise be condonation of the impropriety and unfairness, if the evidence were to be admitted." 60 Bleby J was considering the position at common law. The DPP submitted that the evidence excluded in Robinett could not fall within the statutory test in s.138(1) of the Evidence Act 1995 in that it could not be said that the evidence was obtained in consequence of an impropriety. Robinett provides a telling example of a factual situation which cannot be overlooked. Any formulation of principle cannot leave that situation out of account.

61 Mr Carr submitted that the approach urged by the DPP would not cater for an 'omission' case. That submission is correct. I would not so construe s.138(1).

62 I do not accept that on the point in question there is a significant difference between the position under s.138 of the Evidence Act 1995 and that at common law. The ALRC Report, Vol 1, ch 20, para 964 is to the effect that the Commission favoured the discretionary approach developed by the High Court but with some changes to the law to meet some criticisms of it.

63 There is a distinction between the commission of further offences by a defendant as a result of improper police conduct which precipitated them and the evidence of them which becomes available to be adduced on the one hand, and evidence improperly obtained as to past offences and unconnected with further offences. Can s.138(1) operate to render inadmissible evidence obtained of the commission of further offences following an improper act or omission by the police such as an ill-advised arrest as to an earlier offence and/or the withholding of medical treatment. A number of situations may arise. The person arrested may in a state of anger at his ill-advised arrest commit a serious crime, for example, attempted murder or maliciously inflict grievous bodily harm with intent to do so. In such a case, the evidence of those subsequent acts would be admitted. On the other hand he may commit a relatively minor crime such as a mild assault or resist arrest. Further, he may, if moderately intoxicated, utter threats never intended to be carried out. There is also the example of a reaction at the police omitting to summon necessary medical or other attention when they should have done so.

64 In Robinett Bleby J took a robust approach which was based on the realities of the situation in which the defendant found himself. By excluding the evidence the Crown was not able to prove the offences against the defendant. The offences involved were those allegedly committed at the Port Pirie Police Station to which the defendant was taken after his arrest at another place for other offences. Those other offences were not the subject of the proceedings before Bleby J. The conduct, principally the omissions, held to be improper occurred at the Port Pirie Police Station and the evidence excluded related to alleged offences there.

65 In Robinett the first group of offences occurred at a small town some 28 kms from Port Pirie and it would have taken some time for him to be taken to the Police Station at Port Pirie. In the present case the alleged offences of resist police and assault police took place almost immediately after the use of the alleged offensive language. The incident at the police station took place a short time later.

66 I do not propose to deal with the situation which would arise if an independent eye witness had been called to give evidence of what took place either in Marsh Street or at the police station. That situation does not arise in the present case and there could be particular facts of importance. That could raise difficult questions, if the police misconduct precipitated the conduct the subject of the alleged offences. On the approach of Bleby J and assuming the improper police conduct (or misconduct) was significant and the offences were not of medium to major seriousness, the evidence may be excluded.

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.

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

2. of actions; conduct, things etc. Characterised or distinguished by (fearlessness or) heedless rashness. 75 The DPP submitted that, apart from the case of murder, conduct is reckless if there is foresight of the possible consequences of one's actions and indifference is displayed as to whether or not those consequences occur: R v Coleman (1990) 19 NSWLR 467 and R v Stokes and Difford (1990) 51 A Crim R 25 at 40.

76 The DPP pointed our that apart from the statement of the magistrate quoted earlier he did not identify the acts of Cons Robins which were reckless. The DPP submitted that the evidence revealed that Cons Robins understood the law with respect to alternatives to arrest and knew of the guidelines concerning the use of his powers of arrest. He said that he placed Mr Carr under arrest at the time the incident escalated.

77 In reply Mr Carr pointed out that the magistrate's finding of recklessness should not be divorced from the other findings he had made and should be seen in the light of them. These included his finding that the impropriety was serious, the amount of the permissible fine was at the lowest end of the criminal calendar, arrest for a matter where the maximum penalty is a fine was in a very special category and means that a suspect suffers a greater penalty by being deprived of his liberty than he could possibly get by going to court and being found guilty. The magistrate then repeated his earlier findings of fact: " 1 The officer did not consider a summons

2 The officer had not read the NSW Police Service Handbook 3 The officer knew the defendant's name and address 4 The officer placed the defendant under arrest * for the purpose of giving him a field court attendance notice at the vehicle and/or * for the purpose of stopping him continuing to swear

5 There is no clear explanation as to why the FCAN issue required an arrest

6 The officer did not attempt any other method of effecting the issue of a field court attendance notice apart from arrest - including asking the defendant to stop, or telling him that he would be reported etc

7 A process not requiring arrest was not chosen because it was 'far quicker' to arrest and then issue a field court attendance notice." 78 The magistrate continued: This was more than merely a technical breach. It was inconsistent with the view repeatedly expressed by the higher courts of this State as to what are regular, permissible standards of acceptable police conduct with respect to the decision to arrest. Further, it was inconsistent with the police guidelines, in an unexceptional case, as to appropriate use of the arrest power. Further still, the arrest is inconsistent with the purpose of FCAN's as intended by parliament and the Police Service itself."

79 On the evidence and his findings the magistrate was entitled to hold that the impropriety was reckless. Without traversing all the materials Cons Robins did not consider a summons when that was the course which should have been taken. That was time consuming and troublesome. It was far quicker to issue an FCAN. Cons Robins carelessly disregarded both the use of the appropriate procedure and the possible consequences of the actions which he proposed to take and took when these were obvious and he must have realised these as an officer of five years experience dealing with a person who was moderately intoxicated.

81 Ground 8 reads: "his Worship erred in finding that the impropriety was serious for the purpose of s.138(3)(d) of the Evidence Act 1995 in that: (a) on his Worship's findings concerning the lawful and bona fide actions of the officer acting with integrity, a finding that his actions were 'grave' or 'serious' was not open. (b) in reaching a finding that the 'impropriety' was serious, his Worship had regard to statistics and information which had not been tendered in evidence or referred to by his Worship or the defendant's solicitor in submissions, thereby denying the prosecutor procedural fairness. 82 Section 138(3)(d) requires the Court to consider the gravity of the impropriety. The fact that a police officer has acted lawfully, honestly and with integrity does not prevent the impropriety being serious. In the present case the officer's failure to consider the issue of a summons and his predisposition to FCANs for reasons of expediency was ill-advised and led predictably, to arrest and the deprivation of liberty of Mr Carr. That impropriety was serious.

83 The DPP submitted that the magistrate's finding that the impropriety was serious was flawed because he relied upon his erroneous (in the sense of incomplete) reference to the 1993 second reading speech and the article (or press release) reprinted in the Law Society Journal. As previously mentioned I would not conclude that the magistrate did not take the whole of the second reading speech into account but he should have raised the article with the prosecutor when he was going to place reliance upon it, especially as it contains important factual material.

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.

86 During the submissions of Mr Carr's solicitor the magistrate said (p.23, lines 42-48): "Well I suppose it does concern me that in exercising my discretion to exclude evidence I have to take into account the pattern and I note that less than ten percent of all offensive language charges were initiated by way of summons, but of course we don't know how many of these were initiated by way of arrest because field CANS can involve an arrest or not involve an arrest I guess." These comments were not sufficient to let the prosecution know what the magistrate had in mind or that the magistrate proposed to rely on the statistics in the Report previously mentioned and his experience sitting in the courts of the central western region of the State.

87 Mr Carr submitted that the magistrate was well placed to comment on the pattern of arrest in the western (or central western) area of New South Wales in which he sits. That is so but each party is entitled to know if he has a particular matter in mind which has not been raised in argument.

88 Mr Carr submitted that the substance of the statistical matters was not reasonably open to question and common knowledge in the locality where the proceedings were held and that accordingly formal proof of them was not required. Similarly that common knowledge was capable of verification by reference to a document the authority of which cannot reasonably be questioned. All this may well be so. Reliance was placed on s.144(1) of the Evidence Act 1995. Section 144(2) provides that the judge may acquire knowledge of that kind in any way the judge thinks fit and s.144(3) provides that the court is to take knowledge of that kind into account. However, s.144(4) should not be overlooked: "(4) The judge is to give a party such opportunity to make submissions, and to refer to the relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced." 89 The magistrate should have alerted the prosecutor to the material which he was going to take into account and given him the opportunity to deal with it. I would uphold the ground so far as it relates to the magistrate taking into account the article in the Law Society Journal the statistical and like material and his own experience. 90 When the magistrate further hears this matter he will have to determine what further evidence he admits and identify what matters he proposes to take into account which are said to be common knowledge. He will also need to redetermine whether the evidence was obtained improperly or in consequence of an impropriety.

91 A study of the proceedings before the magistrate and his judgment reveals that the matter was capably argued by both parties before the magistrate and that he engaged in considerable research, much industry and thought in preparing his judgments in matters of difficulty.

92 Pursuant to s.109(a) of the Justices Act 1902 I order that the orders made by the magistrate dismissing the charges of assaulting police, resisting police and intimidating the police be quashed and that each of the matters be remitted to the magistrate to be dealt with according to law and conformably with these reasons.

93 As each party has succeeded on some issues and failed on some issues my provisional view is that I should make no order as to costs. However, I am prepared to hear argument on that issue. Any party desiring to argue the question of costs should within ten days arrange with my associate for the matter to be listed for that purpose.

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