136 A Crim R 127
R v Rondo [2001] NSWCCA 540126 A Crim R 562
R v Taufahema (2007) 228 CLR 232
Judgment (6 paragraphs)
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EX TEMPORE Judgment
These are my ex tempore reasons in the matter of the accused Shaya Bowden, which I heard yesterday.
The accused is before the court charged with 2 offences as follows:
1. That on 13 January 2022 at Temagog, she did hinder Leading Senior Constable Davison, a member of the police force, in the execution of his duty, contrary to s 546C of the Crimes Act 1900 (NSW); and
2. That on 13 January 2022 at Temagog, she did possess a prohibited pistol, being a Glock gel blaster, not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW).
The accused has pleaded 'not guilty' to both charges and I therefore heard this matter yesterday.
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A. DIRECTIONS OF LAW
It is appropriate to set out the directions of law which are relevant to the determination of these charges.
The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the prosecutor. The accused starts from the position that she is presumed innocent and that presumption continues until the prosecution satisfies me beyond reasonable doubt that she is guilty.
The accused does not have to prove that she is innocent, or expressed another way, the accused does not have to prove that she is not guilty. It is for the prosecutor to prove her guilt if it can.
What the prosecutor must prove, beyond reasonable doubt, are the ingredients or essentials facts contained in the charge. The words "beyond reasonable doubt" are ordinary, everyday words and that is how I understand them. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
Because these are criminal proceedings that do not involve strict or absolute liability, not only must the prosecutor prove the accused person committed the alleged acts the subject of the charges, but there is also a common law presumption that mens rea, or an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in the offence.
In this respect, it is the actual knowledge and intention of the accused that must be considered (rather than what a reasonable person would have known and intended). The state of mind of the accused may be the subject of an admission, or it may be capable of inference from the circumstances. Often a person's acts provide the most convincing evidence of their knowledge and intention.
The accused did not give evidence. I have not used that in any way against her. The accused was entitled to say nothing in Court and make the prosecutor prove her guilt if it could. The fact that the accused person did not give evidence does not affect the fundamental proposition which I must apply - that is that the prosecutor must prove her guilt beyond reasonable doubt.
So the silence of the accused in Court is not evidence against her. Her election not to give evidence was not an admission made by her. Her decision not to give evidence must not be used by me to fill gaps in the prosecutor's case or make up any deficiencies or defects in the prosecutor's case that might exist.
I also remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
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B. EVIDENCE
The prosecutor's case relied on the evidence of Leading Senior Constable Davison. The evidence I will now summarise is taken from the body worn video footage which was tendered in the proceedings as Exhibits 1 and 2 respectively, as well as the evidence LSC Davison gave in court at the hearing. LSC Davison was also cross examined.
LSC Davison gave evidence that on 13 January 2022, a phone call had been received from a phone registered to an address in Temagog, to Kempsey police station from a Mr Dylan Kelly-Shephard. The call was at about 10.30am. At about 12.39pm that same day, he, and other officers, attended that property looking for Mr Kelly-Shephard to arrest him for an alleged intimidation offence that had occurred at a 'KFC' outlet on 16 December 2021.
LSC Davison entered the premises and asked to see Mr Dylan Kelly-Shephard. A person who later appeared to be identified as his younger sister said she did not know if he was at the property, but that if he were, he would be down toward the rear of the property. LSC Davison informed that person that Mr Kelly-Shephard had made a phone call from the property earlier in the day. Her name was never revealed in the evidence.
He was then directed to a rear residence on the property by that person. He went to the rear residence and was met by the accused who said that Mr Kelly-Shephard was not at the property and had gone to Sydney as he was aware police wanted to charge him. LSC Davison told her that Mr Kelly-Shephard had called Kempsey police station about half an hour ago from the phone connected to the subject property. The accused was told that Mr Kelly-Shephard was under arrest for an intimidation offence on 16 December 2021 at a KFC outlet and asked that he come outside. The accused told police he had gone, as she had dropped him at the train station. LSC Davison said that no train had left from Kempsey.
LSC Davison told her that he would be coming to arrest him and did not need a warrant. He asked the accused to tell Mr Kelly-Shephard to come outside from the residence. The accused again said he was not at the property, and she had dropped him at the train station. LSC Davison said no train leaves at or about the time she said she dropped him at the station. LSC Davison asked if he could look for Mr Kelly-Shephard, but the accused rejected this. He then walked back to Mr Kelly-Shephard's sister. She confirmed that her mother, who was in Brisbane, owned the property. She confirmed that the accused was Mr Kelly-Shephard's girlfriend. There was some further ongoing discussion between LSC Davison and Mr Kelly-Shephard's sister.
LSC Davison then spoke with Mr Kelly-Shephard's mother on a mobile phone and relayed the information about the charge against him. His mother can be heard objecting to what the police were doing and said that Mr Kelly-Shephard suffered from PTSD due to a violent incident in his past.
LSC Davison said to her that he rang police from a phoneline on the property about an hour ago.
Mr Kelly-Shephard's mother also confirmed she was the owner of the property and asked officers to leave the premises because they needed a warrant. LSC Davison told her that they did not need a warrant to be at the property because he had reason to believe Mr Kelly-Shephard was on the property.
LSC Davison then continued to walk around the property and located a gel blaster pistol on the ground next to the residence where the accused was living and near some garbage (just before 12.51pm according to the footage). He said he was seizing the pistol.
LSC Davison asked the accused who owned the gel blaster and she mentioned her young nephew, but ultimately said that she got the pistol in Queensland and confirmed it was a gel blaster.
He then goes on to say that he was coming into the residence to search for Mr Kelly-Shephard as he had reason to believe he was inside. LSC Davison said Mr Kelly-Shephard rang police from the home phoneline an hour and a half ago.
The accused was asked more questions about the gel blaster and said it was hers. She was cautioned and again said she purchased the gel blaster in Queensland. She said it was now in the rubbish.
She was told she would be charged with possessing the gel blaster and was asked to confirm her name. She told officers her name was 'Shaya Donovan'. The officers left the property and decided to terminate their search of Mr Kelly-Shephard to avoid further conflict with the accused, and asked the accused to pass on a message to him to call the police station. They were on the property for no more than 15 minutes.
The next disc containing body worn video footage, being Exhibit 2, was then played to the court. It showed LSC Davison and other officers returning to the property at 12.59pm on the same day, and approaching the accused and asking her to confirm her identification. LSC Davison says to the accused at that moment that he just saw Mr Kelly-Shephard in the backroom of the residence.
LSC Davison asked the accused for her identification. She told LSC Davison her surname was 'Bowden'. He then said he saw a male person walk past the door, and that one of his colleagues heard a male voice. He then tried to open the door to the residence and the accused was making some efforts to stop the door from being opened. LSC Davison then entered the residence and the accused said repeatedly 'Get out of my house'.
LSC Davison then located Mr Kelly-Shephard and told him he was under arrest for intimidation relating to an incident at a KFC outlet and was cautioned. At one point during the arrest, the accused said 'go away', and LSC Davison can be heard to say 'Let go of me'. Mr Kelly-Shephard tells the police that they need a warrant and delivers a series of expletives toward them. He is then placed in the rear of the police vehicle. The officers were at the property, on this second occasion, for no more than 7 minutes.
LSC Davison was then asked some further questions in court about his remark to the accused. He said that as he was arresting Mr Kelly-Shephard, the accused grabbed him by the arm, and in response to her he said 'Let go of me'. He was asked what he was about to do when he said those words, and gave evidence that he was arresting Mr Kelly-Shephard. He said the accused grabbed him on his forearm using her right arm.
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C. FINDINGS
I now turn to my findings.
Relevant to both sequences was the accused's submission that evidence about the commission of the offences was obtained in contravention of an Australian law, and in particular, s 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which I will refer to as 'LEPRA'.
I will address this issue first.
Section 10(1) of LEPRA provides that a police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant.
Section 10(2) of LEPRA provides that the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling.
In summary, the accused submitted that LSC Davison and his colleagues entered the subject property and stayed for more than a reasonable time to arrest Mr Kelly-Shephard. This is because:
1. They were told Mr Kelly-Shephard was not at the property; and
2. They were asked by the owner to leave the property.
Whether a contravention of s 10 of LEPRA occurred is relevant to each sequence because:
1. In the case of sequence 1, it was submitted the officers stayed on the property for more than a reasonable time, and further, they had no reasonable grounds to believe Mr Kelly-Shephard was in a dwelling on the property, such that their subsequent actions in arresting Mr Kelly-Shephard were not in the execution of their duty; and
2. In the case of sequence 2, when the gel blaster pistol was located, it was submitted this occurred after the licence to be on the property had been withdrawn by the property owner, and after the officers had been on the property for a more than reasonable period of time.
Exhibits 1 and 2 were tendered without objection and a voir dire was not requested or held in relation to the admissibility of this evidence. However, for completeness, I have considered the merits of the accused's closing submissions that a breach of s 10 of LEPRA occurred with the consequence that the evidence was illegally obtained for the purposes of s 138 of the Evidence Act 1995 (NSW).
It is true to observe that the owner of the property had, via phone, asked the officers to leave the property, but if s 10 of LEPRA were complied with, their continued presence on the property was legally authorised. No other contravention of any Australian law was identified or relied upon.
I am mindful, in addressing this topic, of the observations in R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 at [53] which says:
53. These propositions emerge:
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(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility.. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.
(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
The officers, including LSC Davison, suspected that Mr Kelly-Shephard was in a dwelling on the property. A phone call had been received by Kempsey police indicating he was at the premises. It is true that by the time officers had arrived at the property, more than half an hour had lapsed, but I consider LSC Davison's remark in that respect was not arbitrary, including because in cross examination he confirmed that it felt like 30 minutes ago and had been a busy day. He later clarified in the body worn video footage that the call was upward of 1-1.5 hours ago at the relevant time. LSC Davison also knew that it was unlikely that Mr Kelly-Shephard could have caught a train to Sydney at the time the accused suggested, as it did not accord with his understanding of the train timetable.
In cross examination, LSC Davison confirmed his understanding was that trains to Sydney from Kempsey left at 8.30am and midnight, and therefore the accused's statement that she had just dropped Mr Kelly-Shephard off at the train station, given the time of their attendance at the property, was not consistent with his understanding of the train timetable. Again, therefore, his reliance on this information was not arbitrary.
LSC Davison also said he saw the silhouette of a man and was told a male voice could be heard on the property. He confirmed in cross examination his understanding that the only occupants of the property were Mr Kelly-Shephard, his mother, his sister and the accused. In other words, Mr Kelly-Shephard was, to his understanding, the only male person residing at the property.
It is the combination of these factors, rather than looking at them individually, which satisfies me that, under s 10 of LEPRA, LSC Davison believed on reasonable grounds that Mr Kelly-Shephard was in a dwelling on the property. His suspicions, incidentally, also proved to be accurate.
In all the circumstances, I find the officers were reasonably entitled to reject the assertion that Mr Kelly-Shephard was not at the property and to continue to pursue their enquiries, and notwithstanding the property owner's position. At all times, officers reasonably believed there was more than a possibility that Mr Kelly-Shephard was in a dwelling on the property and their suspicion was not arbitrary.
I further find that at no point did officers stay on the premises for more than a reasonable time. During their first attendance, for the reasons I have just described, I find the officers were acting lawfully in exhausting their enquiries as to Mr Kelly-Shephard's whereabouts on the property. The visit was relatively short, and their actions did not unreasonably prolong their attendance at the property to ascertain Mr Kelly-Shephard's whereabouts.
As to their return visit, it too was reasonably justified, including as to the length of time spent on the property, because it had been discovered that the accused may have given them a false name. Upon their return, further enquiries were made of the accused, and ultimately Mr Kelly-Shephard was found very shortly after they arrived. None of the actions of the officers during this time unduly or unreasonably prolonged their need to remain on the property.
The gel blaster pistol was an incidental discovery that occurred during their search for Mr Kelly-Shephard. For the reasons I have given, at the time of its discovery, the officers were not acting beyond their powers under LEPRA.
Accordingly, I find that there was no breach of s 10 of the LEPRA in all the circumstances and hence the evidence in Exhibits 1 and 2 is and was admissible.
I now turn to the peculiar issues arising in relation to each of the sequences.
As to sequence 1, it was clear that by the time of Mr Kelly-Shephard's arrest, the accused had obvious animus toward LSC Davison. The body worn video footage in Exhibits 1 and 2 showed that she strenuously objected to LSC Davison entering the residence. She denied Mr Kelly-Shephard was present inside the residence, and their second attendance at the property demonstrated that she was not telling the truth about her knowledge of Mr Kelly-Shephard's whereabouts. She continued to object to their conduct concerning Mr Kelly-Shephard and his arrest. At the time of his arrest, she was the only person present in the immediate company of LSC Davison, apart from other police officers. There is no doubt, let alone any reasonable doubt, given the contemporaneous statement he made to her as captured on the body worn video footage, being the words 'Let me go', that she grabbed LSC Davison in the manner I earlier described, and with sufficient force, that he noticed her actions toward him.
The elements of the offence in sequence 1 are:
1. The accused;
2. Hindered the victim;
3. The victim was a police officer; and
4. The hinderance occurred while the victim was acting in execution of their duty.
Considering my earlier summary of the evidence and my findings, I am satisfied beyond reasonable doubt that:
1. The accused was the person who grabbed LSC Davison;
2. The accused's actions were wilful, in the sense that they were deliberate as explained in R v Galvin (No. 2) [1961] VR 740 at p 751, as is made plain by the clear animus she harboured toward LSC Davison preceding her taking that action. The only reasonable and rationale inference that can be drawn about her actions, having regard to all the circumstances, was that her actions were deliberate;
3. LSC Davison was and is a police officer; and
4. LSC Davison was, at the time he was grabbed by the accused, and consistent with my earlier findings, acting in the execution of duty, being the arrest of Mr Kelly-Shephard for an earlier alleged intimidation offence.
The question arises as to whether the actions of the accused constitute a 'hindrance', as that word is understood under s 546C of the Crimes Act 1900. The act of the accused grabbing LSC Davison was of sufficient force that it caused him to become, albeit only momentarily, adversely affected in arresting Mr Kelly-Shephard. LSC Davison felt it necessary, at the immediate moment, to say 'Let me go'.
In Taufahema v R [2006] NSWCCA 152, the court endorsed at [27] the statement of principle set out by Bray CJ in Leonard v Morris (1975) 10 SASR 528 at 531, which is that the actus reas of the offence under s 546C is 'any active inference or obstruction which makes the duty of the police officer substantially more difficult of performance'. The overturning of that decision in the High Court in R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 did not affect, however, the statement of principle to which I have just referred.
The difficulty here is that the evidence in the prosecution case does not show that LSC Davison's arrest of Mr Kelly-Shephard was made 'substantially more difficult' by the accused's actions. The evidence establishes that LSC Davison may have been assaulted by the accused having intentionally grabbed his arm without his consent, but she has not been charged with assault. The word 'substantially' must have work to do in this context. Therefore, no doubt the accused grabbing LSC Davison caused his arrest of Mr Kelly-Shephard to be, strictly speaking, more difficult, but notwithstanding her actions, the arrest proceeded without incident (although much can be said about Mr Kelly-Shephard's behaviour at this time, however his behaviour is not on trial here). Her actions were, it appeared to me, very fleeting and momentary. In other words, her actions did not 'substantially' make LSC Davison's duty, in arresting Mr Kelly-Shephard, more difficult.
The prosecutor also relied, to establish the commission of this offence, on the accused having given LSC Davison a false name when he asked her for this information, to raise a charge of possession of the gel blaster the subject of sequence 2. Assuming, for the sake of argument, that the accused gave a false name at the time, I do not consider that this conduct relevantly 'hindered' LSC Davison in the execution of his duty under s 546C of the Crimes Act 1900. Properly construed, I find s 546C must relate to physical conduct, as opposed to oral misrepresentations. The Crimes Act 1900 contains several offences concerning the making of false statements or conveying false information (see for example ss 93M, 93Q, 192G, 192H, 209, 251, 307B, 330 and 335). Contextually, if it were intended that s 546C included, as a type of 'hindrance', the making of false statements to officers in the execution of duty, one would expect the same drafting approach as in the types of provisions I have just identified to have been carried through to s 546C.
I also note par [25] of Taufahema v R [2006] NSWCCA 152 suggests that a wide use of the word 'hinder' is not appropriate.
Accordingly, for these reasons, I find s 546C governs physical conduct only.
It follows for all these reasons that I find sequence 1 has not been proved beyond reasonable doubt and the charge will be dismissed and return a verdict of 'not guilty'.
I now turn to sequence 2.
The elements of the offence are:
1. The accused;
2. Possessed a pistol or prohibited firearm; and
3. The accused is not authorised to possess the said pistol or prohibited firearm by a licence or permit
It was not in dispute that the relevant item was a gel blaster and hence a prohibited pistol. No issue was raised that the accused had a licence or permit for the said pistol. The issue in this case was whether the accused was in 'possession' of the gel blaster at the time it was located.
I earlier summarised the evidence in this case by reference to Exhibits 1 and 2. In addition, Exhibit 3 was tendered, showing photographs of the subject pistol.
The essence of the concept of possession in law is that, at the relevant time, the person intentionally has control over the object in question. A person can have control alone or jointly with some other person or persons. Each person must have the right to exclude other people from it. Ownership is not a prerequisite to establish possession. A person can possess an object temporarily or for some limited purpose. In defining possession as having intentional control over the object in question, the person must have knowledge as to possession. As to this summary of the law relating to possession and knowledge, see He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43, particularly at 627, 629 and 648. See also R v Baird (1985) 3 NSWLR 331, R v Cotterill (Court of Criminal Appeal (NSW), 7 June 1993, unrep) and R v Micallef [2002] NSWCCA 480; 136 A Crim R 127.
It is true that the pistol was found outside the residence within its curtilage, and that it was amongst what appeared to be garbage items. It is submitted that the pistol had therefore been discarded and the accused no longer had control and hence possession of the pistol.
The accused admitted she purchased the pistol in Queensland and identified the item as a gel blaster. She was the owner of the pistol, by her own admission. She was fully aware of its existence and the precise type of pistol.
The fact is that the pistol remained on the property and near the residence in which the accused was living. Even assuming the accused had decided to discard the pistol prior to police discovering the item (and acted on that decision), it remained in her ownership. I accept ownership is not a pre-requisite to establish possession, but it can bolster a finding of continued control of the item, depending on the circumstances. The fact here is that the accused maintained ownership of the pistol, and the pistol was at all times physically proximate to her.
At any time, and certainly at the time of its discovery, she could have, as its owner, physically retrieved the pistol from its location in the immediate vicinity of her residence, even if it were sitting amongst other items of garbage intended for disposal. If the pistol had been removed from the property as an item of garbage and disposed of and destroyed so that she would no longer have access to the pistol, the situation may be different. But the factual circumstances in this matter satisfy me, beyond reasonable doubt, for the reasons I have given, that at the relevant time, she maintained control of the pistol in the sense of that word as explained in the authorities I have cited and thus had possession of the item.
Accordingly, I find sequence 2 proved and enter a verdict of 'guilty'.
Magistrate Scott Nash
Kempsey Local Court
14 July 2022
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Decision last updated: 25 October 2022