Filip Black v Regina

The relevant law

1. The applicable principles to be applied in determination of the appeal are as follows.
2. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31];
3. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
4. Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
5. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
6. The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28].
7. The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91]..
8. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG at [34] per Basten JA.
9. Section 4A Summary Offences Act 1988 relevantly provides A person must not use offensive language in or near, or within hearing from, a public place or a school. Maximum penalty: 6 penalty units. It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.
10. The use of an offensive word will not be prima facie offensive. Whether or not the language is offensive will depend on the application of an evaluatory standard after due consideration of the circumstances and the context: Dalton v Bartlett (1972) 3 SASR 549 at 555, cited in Dowse v New South Wales [2012] NSWCA 337 at [24] per Basten JA (McColl and Hoeben JJA agreeing).
11. In Coleman v Power (2004) 220 CLR 1, Gleeson CJ at [14]-[15] said that a Queensland statute prohibiting the use of "threatening, abusive or insulting words" in a public place required more than the language being "merely derogatory" of the person to whom it was addressed. The language needed to be of such a nature that the use of it in a public place was contrary to the contemporary standards of public good order and goes beyond an exercise of freedom to express an opinion on controversial issues.
12. The reasonable excuse defence involves an evaluative judgement. The term "reasonable excuse" has been used in many statutes. What is a reasonable excuse depends upon the circumstances of the case and the purpose of the provision to which the defence of reasonable excuse is an exception: Taikato v The Queen (1996) 186 CLR 454 at 464 per Brennan CJ, Toohey, McHugh and Gummow JJ. A reasonable excuse is no more or less than an excuse that would be accepted by a reasonable person: Taikato at 470.
13. The onus of proving a reasonable excuse is on the appellant on the balance of probabilities.
14. When a power of search is given by statute that exercise of the power must be exercised strictly in compliance with the statutory power and with the clearest of authority: Henderson v O'Connell [1937] VLR 171 at 176 and applied by the Full Federal Court in Noordof v Bartlett (1986) 12 FCR 209 and cited with approval by McHugh J in Coleman v Power (2004) 220 CLR 1 at [118]-[120]. The police do not have a common law right to commit a trespass by continuing their investigations when their statutory power that authorises the commission of a trespass comes to an end: Kuru v State of New South Wales (2008) 236 CLR 1.
15. Section 21 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) relevantly provides that a police officer may without warrant stop search and detain a person, and anything in the possession of or under complete control of the person if the police officer suspects on reasonable grounds that the person has in his or her possession anything stolen or otherwise unlawfully obtained.
16. Section 30 LEPRA provides that a police officer who is authorised to search a person may carry out a frisk search or an ordinary search.
17. Section 32 LEPRA relevantly requires a police officer conducting a search so far as is reasonably practicable to, inform the person if they will be required to remove clothing during search and why is necessary to do so, ask for the person's cooperation, conduct the search in a way at provides reasonable privacy and is as quick as possible, conduct the least invasive kind of search practicable and must not search the genital area of the person unless it is necessary to do so for the purposes of the search.
18. A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something that would create in the mind of a reasonable person an apprehension of the intended state of affairs. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. Some factual basis for the suspicion must be demonstrated and that basis must have some probative value. What is important is the information in the mind of the police officer at the relevant time. Regard must be had for the source of the information and its content: R v Rondo [2001] NSWCCA 540 at [53].
19. No adverse inference can be drawn from a person insisting on their rights being adhered to and the law strictly followed, and such conduct should not be confused with conduct that can be considered suspicious: Straet v Bauer NSWSC unreported 16 March 1998, per Smart J.

Analysis of the magistrate's reasons

1. Much of the Local Court proceedings concerned if the evidence of the offensive language should be excluded because it was unlawfully obtained because the search of the appellant was unlawful. The Magistrate decided that the detention was over when the last statement was uttered and therefore should not be excluded. For the reasons that follow, I am of the view that the initial arrest and the following search was unlawful.
2. In deciding the case, the Magistrate decided that the last statement was spoken by the appellant and that it was offensive. On appeal, the appellant did not argue that the words were not said by him on the basis that this was not put to the police officer in the Local Court. I note that everything else that was said at the time was clearly recorded. There are good objective grounds for having a reasonable doubt that the words were spoken, however this was not in issue for the reasons I have stated.
3. The Magistrate did not consider the statutory defence of reasonable excuse.

Consideration

1. In my view, the magistrate made a number of legal and factual errors in determining that the search was lawful and for the reasons that follow I have come to the conclusion that it was unlawful.
2. First, the initial arrest for offensive language was unlawful. The police officer did not turn his mind to whether there was an alternate way that the matter could be dealt with. The police officer conceded that he was wrong and discontinued the arrest, which he was entitled to do.
3. Second, the only proper basis for holding a suspicion was that the area was allegedly renowned for break-ins. No evidence was produced to support that allegation, for example in the form of intelligence reports or hearsay directions by the police officer's superiors to patrol that area for that purpose. The other bases were that the appellant had insisted on his legal rights not to identify himself and not to assist the police. Those matters could not be a proper basis for the suspicion. All that was left was that the appellant was walking along a street at about 9am in the morning, wearing a black hoodie, with the hood up, on a cold day.
4. I agree with the Magistrate that the appellant was not being detained at the time that the words were spoken and the evidence was not unlawfully or illegally obtained.
5. The appellant was detained for about 10-15 minutes for the search. He was repeatedly asked for identification, even after the police officer conceded that he had no right to ask for it. Considering all the circumstances, the police officer was determined to get the appellant's identity information from him and to challenge his right to be walking on a public street, whether his powers allowed him to do so or not. Notwithstanding that the appellant's behaviour was impolite and progressing to obnoxious, the police officer's powers were limited. The police officer sought to achieve a result with little regard to the appellant's rights. It was the protracted and unjustified interference with the appellant's civil liberties that ultimately culminated in the offence being committed.
6. The appellant was entitled to be upset by the interference with his rights. In the circumstances, I am satisfied that he had a reasonable excuse for his offensive language.

Conclusion

1. The orders I make are as follows: 1. Appeal against conviction is allowed. 2. I set aside the conviction and the penalty imposed by the magistrate.

Amendments 06 December 2017 - Date of orders amended 06 December 2017 - Paragraph structure amended to reflect decision 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: 06 December 2017