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[2003] NSWLC 15
mixed. The s 28A(5) charge was dismissed, and evidence of the alleged intimidation and resisting offences was admitted; the judgment does not record the final outcome of those charges.
The court concluded that the police officer did not have objectively reasonable grounds to suspect Mr Ping was carrying a dangerous implement. His conduct and an inadequately explained prior knife conviction were not enough, so the search request was unlawful and the refusal-to-search charge was dismissed. The court separately found that the arrest was improper because a summons or court attendance notice could have been used. But it admitted evidence of the later alleged threats and resistance: in its view, those offences were not 'obtained' by police impropriety under s 138 merely because they followed it, and there was no evidence the officer intended or expected them.
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Police v Adrian Ping [2003] NSWLC 15 concerns a police request to search for a dangerous implement, followed by allegations that the accused threatened and resisted police. The decision deals with two distinct questions: whether the search request was authorised under s 28A of the Summary Offences Act 1988, and whether evidence of alleged offences occurring after police impropriety should be excluded under s 138 of the Evidence Act 1995.
No linked legislation citations have been extracted yet.
On 19 May 2003, three officers were undertaking what the judgment calls “proactive tasking”. The magistrate understood that to mean officers were directed to work in a particular area because of recorded information about offending there [2]. Police saw four males riding bicycles on the footpath. The group rode faster, apparently after noticing police, and rode through an intersection against a red light. Police followed for approximately 1 to 1.2 kilometres before stopping two of the cyclists, one of whom was Adrian Ping [2]-[3].
Mr Ping refused requests to move from the roadway to the footpath. Senior Constable West then said he intended to conduct a knife search, referring to Mr Ping’s riding away and behaviour at the scene as grounds for suspicion [4]. Mr Ping refused the search. During the encounter, he made threats to knock out an officer. When told he was under arrest, he dropped his bicycle and ran, and was caught after struggling with police [5]-[6]. The search found no dangerous implement [6].
The court first found that the suspicion did not have reasonable grounds. It dismissed the charge of refusing to submit to a search under s 28A(5) [10]. It then addressed the defence application to exclude evidence relating to the alleged intimidation and resisting offences. The court found the arrest was improper, but decided that s 138 did not require exclusion of that evidence [44]. The judgment does not give a verdict on those remaining charges.
The first decision turned on the statutory requirement of reasonable grounds. Section 28A(1), as quoted in the judgment, permits a police officer to request a search if the officer “suspects on reasonable grounds” that a person in a public place or school has a dangerous implement in their custody [7]. The court treated reasonable grounds as an objective test, relying on Streat v Blanco [10].
The officer listed the area, proactive tasking, the cyclists’ speed, the red-light crossing, Mr Ping’s behaviour, his refusal to be searched, and his previous knife conviction [9]. The court considered those circumstances insufficient. In particular, it said that working in an area subject to proactive tasking did not, without more, justify suspicion about a particular person. Riding away could have had various explanations. Aggressive or abusive behaviour and refusal to be searched did not, in the circumstances, establish suspicion that Mr Ping possessed an offensive implement [10].
The prior conviction did not change that assessment. The judgment notes that the prosecution provided no details about the circumstances, the implement involved, or the date of the earlier offence. The magistrate added that a prior offence alone could not establish reasonable suspicion of present possession. The analogy given was that a past use of premises to grow cannabis would not, without new information, support a search warrant months later [10]. The search request and subsequent search were therefore unlawful, and the refusal charge was dismissed [10].
The second issue concerned the meaning of “obtained” in s 138. The defence argued that the alleged later offences followed an unlawful search demand and an improper arrest. Section 138, as reproduced in the judgment, excludes evidence obtained improperly or unlawfully unless the desirability of admission outweighs the undesirability of admitting evidence obtained that way. The statutory factors include probative value, importance, the nature of the proceeding, gravity of the impropriety, whether it was deliberate or reckless, and the difficulty of obtaining evidence lawfully [13].
The magistrate reviewed the policy balance described in Ireland and Bunning v Cross: the public interest in prosecuting crime must be weighed against the public interest in preventing unlawful or unfair enforcement conduct [14]-[18]. The central interpretive dispute, however, was whether evidence of new offences could be said to be “obtained” by police impropriety simply because the impropriety preceded or contributed to their commission.
The judgment considered Carr, where the Supreme Court had accepted that evidence of further offences could be excluded in the circumstances of an improper arrest. It also stressed Carr’s caution that its reasoning was confined to its facts, involving closely related and relatively low-level offending [19]-[28]. It then considered Coe, where Adams J had reasoned that a causal link alone may not be enough: circumstances must fairly fit the ordinary meaning of “obtained”, and an intention or expectation that the impugned conduct would bring about offences may be relevant [31]-[36].
The Ping court accepted Coe’s interpretation. It rejected a broad equation of “obtained” with “caused”, “stemmed from” or “triggered” [43]. It was concerned that a bare “but for” test would have uncertain boundaries and might extend to serious offences or the conduct of other people [38]-[39]. The court distinguished evidence obtained through a chain of unlawful police acts, as discussed in Rondo, from evidence of new offences allegedly committed in response to police conduct [40]-[42].
Applying that interpretation, the court found no evidence that Senior Constable West intended or expected Mr Ping to threaten or resist police. It attributed Mr Ping’s conduct to his own decision, rather than treating the evidence as having been “obtained” through the officer’s unlawful demand or the improper arrest [44]. As a result, it admitted the evidence of the two alleged further offences.
The court separately found the arrest improper. The officer knew Mr Ping, knew he had recently been released from gaol, and could readily obtain his address from police records. The court said the officer should have told Mr Ping that proceedings would be commenced and used a summons or court attendance notice instead [44]. That impropriety did not, in the court’s view, satisfy the causal and statutory requirements for excluding the evidence of the later alleged offences.
The judgment presents the law before its decision as unsettled on whether s 138 can exclude evidence of offences committed after, and in response to, police impropriety. It describes Carr as recognising that evidence of further offences may be excluded where those offences are closely connected with an improper arrest [19]-[28]. It also explains that Robinett involved police inaction which was found to contribute to later threats and abusive language [25]-[26].
The judgment identifies a competing approach in Coe. On that approach, proof that police conduct was a factual occasion or trigger for later offending does not automatically show that the evidence was “obtained” by the conduct. The circumstances must fit the ordinary meaning of “obtained”; an intention or expectation that the impugned conduct would produce offences may help establish that connection [35]-[36].
The court expressly chose between Carr and Coe on the meaning of “obtained”, adopting the approach it attributed to Adams J in Coe [43]. In its account, this narrowed the possibility of excluding evidence of fresh offences under s 138 where police conduct merely precedes the offending. The judgment did not hold that such evidence could never be excluded. It acknowledged that evidence might fall within s 138 if an officer intended to bring about further offences, or if the relevant conduct was intended or expected to produce offences of that kind [43].
This is a description of the legal reasoning in this judgment, not a claim about the current state of Australian law. The supplied judgment does not establish how later courts treated its approach.
At [10], the court states: “Bold and irritating conduct must be distinguished from conduct which might be characterised as suspicious.” In context, this means that conduct police find difficult, rude or provocative is not automatically evidence that a person is carrying a dangerous implement. The question remains whether the circumstances objectively support the statutory suspicion.
At [10], the court explains that the previous knife conviction did not by itself provide reasonable grounds to suspect present possession. The court’s concern was the absence of information about the earlier offence and the need for current grounds. The point is not that prior conduct can never be relevant, but that this judgment did not treat an unspecified prior conviction as sufficient by itself.
At [43], the court says that “the word ‘obtained’ in section 138 of the Evidence Act should be given its ordinary meaning.” This identifies the interpretive starting point for the second issue. The court did not consider that Parliament’s use of “obtained” automatically covered every later event causally connected to police conduct.
At [44], the court states: “The evidence of the two alleged offences is admissible.” That was an evidentiary ruling, not a finding that Mr Ping committed the offences. The judgment gives no final verdict on those charges.
At [45]-[46], the court recognises a concern arising from its result: admitting the evidence may leave no immediate evidentiary consequence for unlawful police conduct. It says that, if guilt were later found, a court could reflect disapproval in the penalty depending on the seriousness of the offence. This is a comment about possible sentencing, not a sentence imposed in this decision.
The judgment is most directly relevant to a fact pattern involving a request to search a person in a public place under s 28A(1), where the asserted grounds include general area-based policing, evasive or unusual behaviour, verbal hostility, refusal to cooperate, and prior offending. The decision emphasises that the statutory suspicion must relate to present possession of a dangerous implement and must have objectively reasonable grounds [7]-[10].
It also addresses situations where police conduct is found to be unlawful or improper and the accused allegedly commits further offences during the ensuing encounter. The court’s analysis is particularly focused on whether the evidence of those offences was “obtained” by the impropriety, rather than only on whether the impropriety preceded the offences [38]-[44].
A lawyer applying the reasoning would likely need to distinguish among: evidence of a past offence discovered through an unlawful search; fresh offending that follows police conduct; the nature and seriousness of the alleged response; whether the police conduct was intended or expected to bring about offending; and whether the evidence has a direct chain of causation from a statutory contravention. The judgment itself treats those as distinct analytical settings, particularly when contrasting Rondo with Carr and Coe [37]-[43].
The decision does not establish that every improper arrest or unlawful search demand makes later-offence evidence admissible. Its stated reasoning leaves open the possibility of exclusion where police intended or expected to bring about offences of the relevant kind [43]. It also does not decide whether evidence of Mr Ping’s alleged conduct proved the charges.
The supplied judgment contains no account of later judicial treatment of Police v Ping. It was decided in 2003 and discusses cases decided before it, including Carr, CAD, Coe, Ridgeway and Rondo [19]-[44]. Those discussions explain the reasoning available to the magistrate at the time; they do not establish what courts subsequently did with Ping.
Within the judgment, Coe is the authority the magistrate chose to follow on the meaning of “obtained” [43]. Carr is treated as an important but fact-specific decision, with the judgment highlighting Smart AJ’s caution against applying Carr’s remarks more broadly [24], [28]. The magistrate also notes that CAD did not decide that s 138 could never apply to evidence of offences following police impropriety [29].
The judgment’s discussion of Rondo concerns evidence obtained through a chain of unlawful police acts, including searches and detention. The magistrate distinguished that kind of chain from the commission of fresh offences allegedly prompted by police conduct [40]-[42]. No claim about the subsequent acceptance, rejection or modification of that distinction can be made from the supplied text.
The judgment itself identifies uncertainty at the margins. It discusses the difficulty of deciding how serious or disproportionate an offence must be before it is no longer fairly described as “obtained” through police conduct [23]-[24]. It also expresses concern that a broad “but for” test would have no clear endpoint and could extend beyond the accused to other people’s actions [38]-[39].
The decision does not specify how much evidence of police intention or expectation is required. It says that intention or expectation may matter, and that the relevant offences would need to be those sought to be brought about or at least offences of that sort [43]. It does not provide a detailed test for proving that state of mind, or resolve every case in which police conduct foreseeably creates circumstances in which an offence occurs.
Nor does the judgment apply the full s 138 balancing exercise to a final set of admitted evidence in a way that records each statutory factor separately. It sets out the factors in [13], reviews the public-policy principles in [14]-[18], and then resolves the issue principally through its interpretation of “obtained” and its findings about causation, intention and expectation [43]-[44].
Finally, the judgment does not state the verdict or sentence on the intimidation and resisting allegations. It rules only that the evidence of those alleged offences is admissible, while observing that any penalty could, depending on the circumstances, reflect disapproval of the unlawful police conduct [44]-[46].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
CITATION: Police v Adrian Ping [2003] NSWLC 15 JURISDICTION: Criminal PARTIES: Police v Adrian Ping FILE NUMBER: PLACE OF HEARING: Wollongong DATE OF DECISION: 12/17/2003 MAGISTRATE: CATCHWORDS: Refuse to comply with request to seach - resist police in execution of their duty - intimidate police Summary Offences Act s 28A (5) LEGISLATION CITED: Summary Offences Act 28 A (1) Evidence Act s 138 Streat v Blanco NSW SC 16.3.1998 Smart J at p11 Director or Public Prosecutions v Lance Carr NSWSC s 12175 of 2000, Smart AJ R v Ireland (1970) 126 CLR 321 at p 355 The People (Attorney General) v O'Brien [1965] IR 142. CASES CITED: Olmstead v United State (1927) 277 US 438 at p 470 (72 Law Ed 944 at p 953)Bunning v Cross (1978) HCA 22 (1978) 141 CLR 54 p75 Robinett v Police (2000) 78 SASR 85; 116A Crim R 492. DPP V CAD & Ors [2003] NSWSC 196 (26 March 2003) Ridgeway v The Queen F.C No 95/016 HCA 33 (1995) 129 ALR 41 (1995) 69 ALJR 484 (23 August 1994). Rondo [2001] NSWCCA 540 (24 December 2001) REPRESENTATION: Police Prosecutor Sgt Mewett Ms B O'Reilly for the accused. ORDERS:
1 On the 19th May 2003 at Corrimal Adrian PING (d.o.b. 27.1.1983) was arrested and charged with the offences of (1) refuse to comply with request to search (Summary Offences Act…S.28A(5)), (2) resist police in the execution of their duty and (3) intimidate police officer. 2 On that day the three arresting police were taking part in "proactive tasking". I understand that to mean that they were directed to work in a particular area because of recorded information as the number of offences committed in that area. As they drove in their marked police vehicle, they saw four males on pushbikes riding on the footpath. They were going in the same direction as the police vehicle. The males commenced to ride faster. The police thought this happened when the males noticed the police. The males rode through the next intersection against a red traffic light. The police waited at the red light then proceeded to follow the males. 3 By the time the police caught up with the males, they had gone 1 to 1.2 kilometres further down the road. The police vehicle pulled in front of the males and stopped. The police got out and signalled the males to stop. Two rode around the police, into a park and disappeared. The other two stopped. One of those who stopped was Mr Ping. He stopped on the roadway adjacent to the police car. 4 He was asked to get off the road and go to the footpath. He said "Fuckin get out of me way". He was asked again and said "I'm not fucken movin." The senior of the three police officers (Senior Constable West) then approached the accused and said "Adrian can you get off the road. I'm going to subject you to a knife search, as I believe by your actions of riding away quickly when you saw Police that you may be carrying some sort of weapon, the way you are carrying on now is also reinforcing this belief". The accused replied "Mr West I just got out of gaol and the first cop I meet is you, ya fuckin kiddin". Senior Constable West then formally demanded that the accused comply with the request for the search. 5 The accused refused to submit to the search. During the interaction with police he said "I just wanta go" and later "Ya touch me I'll knock ya fuckin out" . Senior Constable West said "I'm going to conduct a knife search and if there is nothing there you can go". He went to get the metal detector and he heard the accused say to another officer "Ya come near me, I'll knock ya out, I'll drop ya with one punch ya cunt". 6 Senior Constable West returned and said "Adrian I've given you a fair go here, you are now under arrest for intimidating that officer and I still intend to conduct the knife search". The accused dropped his bike and commenced to run. He was grabbed, struggled, placed on the ground and handcuffed. He was subjected to the knife search and nothing was found. 7 At the end of the prosecution case, the court heard submissions as to the validity of the search. Section 28A(1) of the Summary Offences Act 1988 provides: (1) If a police officer suspects on reasonable grounds that a person who is in a public place or a school has a dangerous implement in his or her custody, the police officer may request the person to submit to a search comprising any or all of the following procedures: ……
8 The definition of a dangerous implement is "dangerous implement" includes: (a) a knife, or (b) a firearm (within the meaning of the Firearms Act 1996), or (c) a prohibited weapon (within the meaning of the Weapons Prohibition Act 1998), or (d) an offensive implement within the meaning of section 11B but does not include anything that is of a class or description declared by the regulations to be excluded from this definition.
9 The section then goes on and sets out searching procedures. The evidence of Senior Constable West was that his reasonable grounds for suspicion were that he was working as part of "proactive tasking", that he had some knowledge of the sort of crime committed in the area, that the accused sped off on his bicycle when he saw the police, that the accused rode through a red light and that, when stopped, the accused was aggressive and refused to be searched. In addition, Senior Constable West said that he knew the defendant and he knew that he had a prior conviction for a knife offence. 10 The court held that the officer's suspicion was not based on reasonable grounds. It is not enough for the officer to have a suspicion. The suspicion must be based on reasonable grounds. The test of reasonable grounds is an objective test. Streat v. Bauer. Streat v. Blanco. NSWSC 16.3.1998 Smart J. at p.11. Patrolling on "proactive tasking" does not mean that a particular person, without more, could be suspected of carrying a dangerous implement. The accused and his friends may have sped off on their bicycles for any number of reasons. A reasonable suspicion that the accused was carrying a dangerous implement could not be based on the perceived flight. His behaviour when stopped was aggressive and abusive. "Bold and irritating conduct must be distinguished from conduct which might be characterised as suspicious" (Streat v. Bauer. Streat v. Blanco at p.13). The defendants in that case refused to get out of the car for several minutes; when they got out of the car they locked it but left the engine running; they challenged the police to arrest them or let them go; when they were not arrested they walked off; they returned at the request of the police; they refused to open the car; they lay down on the ground and curled up so that it would be difficult for the police to search. All this was described as "bold and irritating" but not enough to found a reasonable suspicion. The defendant's behaviour - riding off, verbal abuse, refusal to be searched - is not enough to justify a reasonable suspicion that he may be carrying an offensive implement. Although the defendant had a prior knife offence, no details were provided to the court as the circumstances of the previous offence, the nature of the implement or the date of the offence. In any event, a prior offence is not of itself enough to establish a reasonable suspicion that the accused has a dangerous implement in his possession. To use an analogy, if a house is validly searched with a search warrant and a hydroponic drug system found with many cannabis plants, that does not mean that in 6 months time a search warrant could be validly issued because of the previous use of the premises for that purpose. There would need to be new information to establish reasonable grounds to suspect that drugs were again being grown on the premises. There must be reasonable grounds to suspect that the accused was carrying a dangerous implement. There were done. The request to carry out the search and the subsequent search after arrest were not based on reasonable grounds and were unlawful. The information under section 28A of refusing to submit to the search was dismissed. 11 The defence then argued that because of the unlawful request to search and the unlawful search, the court should exercise its discretion under S.138 of the Evidence Act and refuse to admit evidence of the further alleged offences of intimidation and resist police. 12 The defence also argued that the accused was well known to Senior Constable West, that he was a long time resident of the Illawarra, that he had just got out of gaol, that his new address was readily obtainable from the police computer, and that therefore arrest should not have taken place. Some less drastic measure could and should have been taken to commence criminal proceedings against the accused. The defence argued that the initial offence of "refuse to submit to search" was at the bottom criminality of offences and that the arrest of the defendant was "improper". The court was referred to Director of Public Prosecutions v. Lance Carr NSWSC s 12175 of 2000, Smart AJ. The court was asked to exercise its discretion under S.138 of the Evidence Act and exclude the evidence of the alleged offences of "intimidation" and "resist" because of the impropriety of the arrest. The court reserved its decision.
13 Section 138 of the Evidence Act provides: "Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless 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.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the Internationl Coventant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law"
14 The principle of exclusion of evidence unlawfully obtained was enunciated in the case of R.v.Ireland [1970] SASR where Zelling J. at 445-448 quoted with approval the following passage from The People (Attorney-General) v O'Brien [1965] IR 142: "…a choice has to be made between desirable ends which may be incompatible. It is desirable in the public interest that crime should e detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions and that the answer to the question depends on a consideration of all the circumstances".
15 In refusing special leave to appeal to the Full High Court Barwick CJ said in Reg.v.Ireland (1970) 126 CLR 321 at p.355: "Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one had there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion".
16 The remarks in Ireland where endorsed in Bunning v. Cross (1978) HCA 22; (1978) 141 CLR 54. Stephen and Aicken JJ said at p.75 "What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighting against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of fairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one fact which, if present, will play its part in the whole process of consideration"
17 And at pp 77-78 "These are cases into which unfairness does not enter at all. They are, however, cases in which the considerations referred to in Ireland's Case (1970) 126 CLR 321 may be of greatest relevance. The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be a 'less evil that some criminals should escape than that the Government should play an ignoble part' - per Holmes J. in Olmstead v United State (1927) 277 US 438, at p 470 (72 Law Ed 944 at p 953). Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law"
18 Section 138 of the Evidence Act is the legislative enactment of judicial pronouncements on the exclusion of evidence unlawfully and/or improperly obtained. 19 Carr's case was the first case in NSW, as far as I am aware, that decided that evidence of further offences, committed after an improper act by the arresting police officer, could be excluded under Section 138 or indeed under the law as it stood prior to the commencement of the Evidence Act. The impropriety was the arrest of the defendant for the offence of using offensive language. The magistrate found that this was improper because the arresting officer was obliged to consider other means of commencing court proceedings other than the extreme step of arrest. The magistrate after considering the provisions of S.138, excluded the evidence of alleged further offences committed after the arrest. Smart AJ found that this finding was open to the magistrate. 20 21 The issue in the case was summed up by His Honour at paragraph 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?
22 His Honour in paragraph 67 quoted from the magistrate's decision the following: "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."
23 His Honour identified a serious problem with this argument. At paragraph 68 he discusses the nature of offences committed after an impropriety. "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".
24 The answer to the question posed by Smart AJ in paragraph 63 of Carr above, was not without difficulty. At paragraph 70 His Honour said: 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.
25 Smart AJ relied on the South Australian case of Robinett v. Police (2000) 78 SASR85; 116 A Crim R 492. Robinett was arrested and charged with offences. He was taken to a police station about 28 kilometres from the place of arrest. In the process of arrest and/or transport the defendant was sprayed with capsicum spray. He was placed in a holding cell on arrival at the police station. The court found that the police ignored his complaints about eye irritation caused by the spray and his concerns over his asthma. They ignored his request for a doctor. The defendant was intoxicated. The defendant uttered threats and abusive language and was charged with a further offence relating to his language. Bleby J concluded 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. 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 believe…that the failure to react did cause or contribute to the commission of the alleged offences." And after deciding that he should exercise the discretion said "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." 26 Bleby J was considering the position at common law. Smart JA did not accept that on the point in question there was a significant difference between the position under S.138 of the Evidence Act 1995 and that at common law. He said "Robinett provides a telling example of a factual situation which cannot be overlooked. Any formulation of principle cannot leave that situation out of account". It was the only case referred to in Carr in which evidence of improper police conduct had precipitated further offences and had, for that reason been excluded by the court. 27 28 In summary, Carr's case became authority for the proposition that evidence (of further offences) obtained in consequence of an impropriety (wrongful arrest) or unlawfully can be excluded under section 138 of the Evidence Act. His Honour applied his remarks strictly to the facts as found by the magistrate. He said "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" 29 In DPP v. CAD & Ors [2003] NSWSC 196 (26 March 2003) the magistrate found that an off duty police officer's arrest of a young person amounted to an impropriety. He excluded evidence of offences committed by others against the police officer after exercising his discretion under S.138. After Barr J considered the evidence he found that the arrest did not amount to an impropriety. It was therefore not open to the magistrate to exclude further evidence under S.138. Barr J also found that in exercising his discretion under S.138 the magistrate did not inform himself of the evidence sought to be excluded. The exercise of the discretion S.138 must include consideration of the "nature of the relevant offence" (S.138(3)(c)) which the magistrate did not do. Barr J. did not make any finding that a discretion under S.138 could not operate to exclude evidence obtained of offences committed following improperly or in contravention of an Australian law. 30 31 Carr's case was not followed in Director of Public Prosecutions v. Coe (2003) NSWSC 363 1 May 2003 Adams J. The very brief facts in that case were that a police officer (Constable Baker) in Kings Cross saw Mr Munro in a group of other men. Mr Munro was injured and bleeding. Constable Baker tried to find out what had happened to Mr Munro and offered to call an ambulance. Mr Munro rejected the constable's approach and was very abused to him. This had gone on for some time. At one stage the constable reached out and just touched Mr Munro's arm to calm him down. Mr Munro pushed against Constable Baker who stepped back. The constable was then punched to the right side of the head by Coe. He fell to the ground and was kicked by Munro. He tried to get up and was kicked again. Other police arrived. Coe and Munro were arrested and charged. It was argued before the magistrate that the constable "had unlawfully attempted to arrest Mr Munro and that the assaults charged against him (if they occurred) were "obtained" by virtue of the improper behaviour of the constable". 32 His Honour said at para.9 and 10: "Before analysing the actual character of the impropriety or illegality, it is useful to consider the question whether the evidence of the alleged assault by the defendant was 'obtained' by Constable Baker's improper actions. At first blush, the submission of the defendant appears odd, to say the least. It is a strange use of language to say that the evidence of the assault by the defendant was 'obtained' by the impropriety merely because the impropriety led to or was the cause of the assault, leaving aside as perhaps more apparent than real the distinction between the commission of the offence on the one hand and the evidence of the commission of that offence on the other. The Oxford English Dictionary, 2nd Edition, gives as the primary meaning of 'obtain' "To come into the possession or enjoyment of (something) by one's own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get."
Uninstructed by authority, I would have thought that this is the sense in which the word is used in subs138(1). It would follow that the alleged assault by the defendant had not been obtained by the actions of the constable.
33 The magistrate had found that the actions of the constable amounted to an unlawful arrest. The magistrate said that the "specific act (the assault) …then appeared to trigger a violent confrontation between the parties." The magistrate considered the provisions of S.138. The evidence of the incident that followed was not admitted. His Honour, however, found on the facts that the constable was not attempting to effect an arrest and that there was no evidence that the constable suspected that Munro had committed any offence. 34 Adams J. referring to Carr said "His Honour concluded that the magistrate was entitled to find that the offences charged 'stemmed from the ill-advised and unnecessary arrest'. His Honour in Carr had found that the offence of offensive language following in sequence by resisting arrest and assaulting police was not unusual and were "closely related and interconnected". Adams J. referred again to what was said in Carr citing the qualification that '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'. 35 Adams J said at para.23: "This was a reference, not to the balancing process prescribed by the concluding words of subs 138(1) but to the necessity of establishing a causal link between the impropriety and the offences committed by the defendant. A disproportionate reaction meant that, although the impropriety was the occasion for the offences, it was not the cause, which must then be found in the voluntary acts of the defendant. Applying this reasoning to the present case, the mere fact that the unlawful arrest or attempted unlawful arrest "triggered" what followed, did not dispose of the problem of causation and the failure of the learned magistrate to consider this matter amounted to a fundamental error of law. It is obvious that the facts here that the alleged response of the defendant to the constable's conduct was so disproportionate and so serious an offence that, even if it was 'obtained' by that conduct, was not caused by it."
36 He went on at para.24: "It will be seen from the above discussion that Smart AJ considered that 'obtained' was the practical equivalent of 'caused' or 'stemmed from'. For the reasons that I have given, I am, with the greatest respect, unable to agree with this interpretation. The word 'obtained' is in ordinary parlance and should not be unduly or artificially restricted…..but it cannot apply more widely than circumstances which fairly fall within its ambit. Where 'real evidence' is indeed obtained as a result of impugned conduct, then the case would, of course, come within the purview of the section, even if the conduct was not undertaken for the purpose of acquiring the evidence. Where, however, the evidence in question is that of offences which have been caused by the impugned conduct, it does not seem to me that the evidence will have been 'obtained' unless something more is shown than the mere causal link: the circumstances must be such as to fit fairly within the meaning of 'obtained', almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of offences. In some case, of which Robinett v. Police (2000) 78 SASR 85; 116 A Crim R 492 and Carr may be examples, there could be such an expectation that offences will result from the impugned conduct that it will be reasonable to say, as an objective matter, that they were 'obtained' by that conduct but these situations will be rare"
37 The "what would have happened" or "but for" test referred to in Carr is also mentioned in Ridgeway v. The Queen F.C.No.95/016 [1994] HCA 33; (1995) 129 ALR 41 (1995) 69 ALJR 484 (23 August 1994). Mason CJ, Deane and Dawson JJ said at para 17: "In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statement of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be 'demeaned by the uncontrolled use of the fruits of illegality in the judicial process'. Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission". (emphasis added).
38 Ridgeway was concerned with the admissibility of evidence that had been procured by the unlawful conduct of police officers obtaining and bringing into Australia prohibited drugs for the purpose of supplying those drugs to the defendant. The case emphasised that for the evidence to be excluded it must be unlawfully procured. It also established that unlawfully procured evidence designed to bring about the commission of a crime may be excluded on public policy grounds. The necessity for their to be an intention or design by enforcement officers to bring about the commission of the offence differs significantly to what was said in Carr. In Carr there was no qualification. If the evidence of the further offences was obtained in consequence of an impropriety or contrary to an Australian Act that was enough. It was not necessary that there be any design or intention for this to come about. In Coe, however, Adams J. said that evidence of offence caused by impugned conduct "will not have been 'obtained' unless something more is shown than the mere causal link: the circumstances must be such as to fit fairly within the meaning of 'obtained', almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of the offences. In some cases, of which Robinett and Carr may be examples, there could be such an expectation that offences will result from the impugned conduct that it will be reasonable to say, as an objective matter, that they were 'obtained' by that conduct but these situations will be rare". Without such a qualification there can be no certainty as to where the "but for" test would come to an end, to whom it would apply and the nature of the offences to which it would apply. In Carr the "but for" test included the defendant's behaviour both in the street where he was arrested and back at the police station. In CAD the magistrate applied the "but for" test and extended it to include others who assaulted a police officer who was found (wrongly) to have acted improperly in arresting a person who turned out to be a juvenile. And in Coe the "but for" test was extended (again wrongly) to include assaults on a police office by two persons, one of whom he had merely touched on the arm. 39 The "but for" test has resulted in decisions being made (and overturned) excluding evidence of very serious offences against police officers even though Smart AJ in Carr attempted to restrict his remarks to the facts of that case and cautioned that "they should not be applied more broadly". Smart AJ said "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". In both CAD and Coe it would appear that the courts at first instance either did not heed these remarks or decided that the alleged offences were not "moderately serious to serious and disproportionate to an ill-advised arrest". Apart from what was said in Carr, the court is unaware of any other case that suggests that such a test can be applied to exclude evidence of offences committed in consequence of an impropriety or in contravention of an Australian law. 40 In Rondo [2001] NSWCCA 540 (24 December 2001) the court (Spigelman CJ, Simpson J and Smart AJ) had to consider a number of occasions where the police contravened the law and the effect that had on the admissibility of evidence obtained in contravention of those laws. There were issues about the stopping of the defendant's motor vehicle, the searching of his motor vehicle, the length of his detention at the police station and the search of the defendant's home. Spigelman CJ said at para 4 and 5: "…when his Honour came to undertake the balancing exercise under s138 with respect to the admissibility into evidence of the items found in the glove box, his Honour did not have in mind that particular contravention (stopping the car) 'in consequence of' which evidence was obtained.
"Similarly, when his Honour came to undertake the balancing exercise under s138 with respect to the evidence found at the home, his Honour did not have in mind the fact that that evidence was obtained 'in consequence of' the contravention of s357E constituted by the act of stopping a vehicle. There is a clear chain of causation between the contravention of s357E and the obtaining of the evidence at the home which satisfies the 'in consequence of' requirement of s138'.
41 From the time the police stopped the car (in contravention of an Australia law) through the search of the car, to the detention of the defendant in the police station and finally to the search of the home and the finding of drugs in the home, there was a "chain of causation". Because of the first unlawful act of stopping the car, the other unlawful acts flowed from that until "evidence was obtained in contravention of an Australian law". Even though the finding of drugs at the defendant's home was remote from the stopping of the car, that evidence was "obtained in consequence" of that act. If the car had not been unlawfully stopped, there would have been no search at the home. The first unlawful conduct of the police eventually leads them to evidence of the offence of possession and/or cultivation of the drugs at the home. The evidence that was "obtained in consequence" of the unlawful act through the "chain of causation" was evidence of past offences and unconnected with offences committed "but for" the impugned behaviour of the police officers. 42 The cases of Ireland, Bunning v. Cross, Ridgeway and Rondo were all concerned with evidence obtained by the unlawful actions of enforcement authorities. In Ireland photographs had been taken of the defendant's hands contrary to statutory procedures; in Bunning v. Cross the statutory procedures had not been followed prior to the defendant being subject to breath analysis; in Ridgeway the enforcement authorities committed criminal acts for the purpose of luring the defendant into committing a criminal act; and in Rondo the stopping of the car, the search of the car, the detention at the police station and the search of the home were all unlawful acts from which evidence was obtained either directly or through a chain of causation. None of these cases mention "the commission of further offences by a defendant as a result of improper police conduct which precipitated them"(Carr at para.63) and none of the cases mention offences caused as a result of unlawful police conduct. There is no mention of a discretion to exclude evidence of further offences in any of those case. Robinett was the only case of that sort referred to in Carr. 43 The court must decide whether to follow Carr or Coe. The court accepts that the word 'obtained' in section 138 of the Evidence Act should be given its ordinary meaning. There is nothing in the Act or the cases that point to a broad definition to include such meanings as 'caused', 'stemmed from' or 'triggered'. The history of the principle of exclusion of illegally or improperly obtained evidence, has always been a history of exclusion of evidence obtained of an offence previously committed. Never, until Robinett and Carr did the cases even mention the possibility of excluding new offences committed in consequence of impugned conduct by a police officer. If a police officer intends by his/her improper or unlawful conduct, to bring about the commission of further offences, such behaviour may well fit within section 138. Such evidence would be 'obtained' by impugned conduct, provided the offences committed were those that the officer had sought to bring about, or, at the very least, offences of that sort. The evidence of such offences would come about as a result of the officer's intention. Without this qualification, any behaviour committed following impugned conduct, could be excused even though that conduct was not caused by the impugned conduct. For example, in Coe, the assaults on the police officer by Coe and Munro may have been a consequence of the officer touching Munro on the arm, but they were not caused by that conduct. They were caused because the defendants intended to commit those assaults. 44 The court for these reasons accepts the interpretation of the law as per Adams J in Coe. The behaviour of Mr Ping in threatening the officer and resisting arrest happened as a consequence of his being unlawfully stopped by the police officer. There was no evidence on which to conclude that the officer either intended or expected Mr Ping to behave this way when told he was to be searched. Mr Ping's behaviour was not caused by the unlawful act of his being stopped and the demand for a search being made. Mr Ping's behaviour was a result of Mr Ping's decision to respond that way to the unlawful demand to stop and be searched. This same reasoning can be applied to the "impropriety" of an arrest where a summons or court attendance notice would have been sufficient. Senior Constable West knew the accused well. Knew his criminal history. Knew he had just been released from gaol. Knew that he could easily find the defendant's address from the police computer. Once it was clear that the accused was not going to submit to the search, Senior Constable West ought to have told him that proceedings would be commenced against him for that offence. A summons or court attendance notice could then be issued. Failure to do that was improper, applying Carr. However, that impropriety did not cause the commission by Mr Ping of the further alleged offences. The evidence (of the offences committed after the demand to be searched was made) was not "obtained" improperly or in contravention of an Australian law (s.28A of the Summary Offences Act.). The evidence of the two alleged offences is admissible. 45 The court is aware that this finding means that the unlawful conduct of the police office is admissible evidence, notwithstanding that he acted without lawful authority in stopping the accused and searching him. There is therefore no obvious consequence for that unlawful conduct. The accused may be found guilty of offences committed by in direct response to the unlawful conduct of the police officer. It may therefore be seen that "curial approval, or even encouragement, (is) being given to the unlawful conduct of those whose task it is to enforce the law" Ireland p.335. 46 If the defendant is found guilty, the only avenue open to the court to express its disapproval of the unlawful conduct is, depending on the seriousness of the offence, to reflect that disapproval in the penalty imposed.
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Police
Adrian Ping
[1994] HCA 33
(1970) 126 CLR 321
(1978) 141 CLR 54
(2000) 78 SASR 85
(1995) 129 ALR 41
(1995) 69 ALJR 484
The s 28A(5) charge was dismissed, and evidence of the alleged intimidation and resisting offences was admitted; the judgment does not record the final outcome of those charges.