Police v Brett Lee Nye

[2003] NSWLC 9

Local Court of NSW|2002-09-26|Before: Hunt CJ, Smart J

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Source facts

Court

Local Court of NSW

Decision date

2002-09-26

Before

Hunt CJ, Smart J

Source

Original judgment source is linked above.

Judgment (92 paragraphs)

[1]

CITATION: Police v Brett Lee Nye [2003] NSWLC 9 JURISDICTION: Criminal PARTIES: Police Brett Lee Nye FILE NUMBER: PLACE OF HEARING: Moruya DATE OF DECISION: 12/20/2002 MAGISTRATE: Magistrate D Heilpern CATCHWORDS: Crimes - Practice and Procedure - Arrest - Evidence LEGISLATION CITED: Evidence Act 1995 Summary Offences Act 1988 R v Coombe (unrep CCA NSW 24/4/97) Hunt CJ R v Coulstock (1998) 99 A Crim R 143 Carr v DPP (unrep NSWSC Smart J) Hazell v City of Parramatta (1968) 1 NSWLR 165 Bales v Parmeter (1935) 35 SR NSW 182 Williams (1986) CLR 278 CASES CITED: Pirani and Diggins v Hardy (NSWSC Smart J 9/9/84) R V Merrit (2002) Crim LN (1474) R v Haddad and Treglia (2000) NSWCCA351 Robinett v Police SCGRG-00-11-2000 R v Dalley Crim LN 55(1446) Ridgeway (1995) 184 CLR 19 R v K 119 ALR 596 REPRESENTATION: Davis for Police Edmunds/Smith for Defendant ORDERS: Charge dismissed.

[2]

Proceedings 1 This matter first came before the local court at Batemans Bay for hearing on 26 September 2002. On that day the prosecution case was tendered without objection, some questions were asked of the informant Snr Const Magrin, and some legal argument was entered into. The matter was then adjourned for legal submissions on the issue of "execution of duty" to Moruya on 25 October 2002. On that day the defence indicated that they wished to raise a legal issue as to the admissibility of much of the prosecution case on the basis of s138 Evidence Act 1995. This effectively was a re-opening of the case as the evidence was previously admitted without objection. Graciously, and most fairly, Mr Davis agreed to that course, and I heard legal argument on s138 and on the issue of execution of duty. Thus this judgement deals with two distinct issues, the first evidentiary, and the second substantive. 2 In essence the defence is arguing that the evidence of intimidation should be excluded due to the illegality or impropriety of the officers actions with respect to a young person. Should the evidence be admitted, the defence is arguing that the prosecution have failed to prove that the officer was acting in the execution of his duty. Facts 3 There is no contention as to what occurred. At 12.40pm on 28 June 2002, Snr Const Magrin and Curry were in uniform patrolling in the CBD of Moruya. They saw a group of 10 - 15 people standing on the corner of Vulcan and Church Street on the footpath and outside an hotel. The group consisted of adult males (one of whom was the defendant, an aboriginal male) and juveniles (one of whom was an aboriginal thirteen year old, KB). The statement of Snr Const Magrin describes what next occurred: 4. The group were loitering and blocking the footpath impeding pedestrian traffic. We pulled the police vehicle to the side of the road to speak to the group. Immediately upon stopping the barman, Bob, from the Hotel walked from the bottle shop section of the pub to the police vehicle and spoke with Senior Constable Curry and I.

[53]

16 Arrest for any other purpose is not lawful - Bales v Parmeter (1935) 35 SR NSW 182, Williams (1986) CLR 278. In Pirani and Diggins v Hardy SC NSW Smart J 9 September 1984 the court found as follows: "An arrest will not be within power unless it is effected in good faith and for the purposes contemplated by the enactment….the purpose of the acts done must be to vindicate and to give effect to the law". 17 In R v Merrit, [2002] Crim LN [1474] the defendant stood trial for using a weapon with intent to avoid lawful apprehension. Two police approached a caravan where the defendant was hiding. They entered the caravan over the objections of a third party and the defendant brandished a spear at them. The police identified themselves, informed the defendant of the reason he was to be arrested for driving matters. However they did not "announce prior to entry", a common law requirement. The Court of Appeal entered a verdict of acquittal finding that the apprehension was not lawful and thus an element of the offence was not proven. 18 It is clear is that the officer suspected an offence had been committed. However, I agree with the submission that it is difficult to conclude that this belief was reasonable. How can it be reasonable when for the offence to be committed the officer must do certain things? He did not do one of those things. Reasonable cause imports an objective standard to the suspicion. I concur with Mr Smiths submission that there was not reasonable cause to suspect the young person of having committed the offence. I am satisfied on the balance of probabilities on this ground that the arrest was unlawful. 19 Section 8 of the Childrens Criminal Proceedings Act 1987 states that Criminal proceedings "should not be commenced against a child otherwise than by way of summons or attendance notice". Exceptions include a serious children's indictable offence, violence and indictable drug offences. There are further exceptions where the police officer believes on reasonable grounds that the child is unlikely to comply with a summons or attendance notices or is likely to commit further offences if the proceedings were commenced by summons or attendance notice. Further, s8(3) provides that (3) If a child fails to comply with an attendance notice, the child's attendance at the proceedings to which the notice relates should, unless there are exceptional circumstances, be enforced by way of summons rather than by way of warrant.

[68]

Consequence 32 This requires careful analysis of the judgement in Carr. In that case in my judgement I applied a "but for" test. On appeal the issue was canvassed in some detail. Consideration was given to R v Haddad and Treglia [2000] NSWCCA 351 and Robinett v Police SCGRG-00-11-[2000]. In short, the court appears to be saying that the "but for" test was appropriate in the Carr case given the factual circumstances. I have carefully read these three cases and they do not canvass, but do not preclude, the situation in this case. Were the young person to have uttered threats to the police officer whilst he was unlawfully/improperly being arrested then the situation would be clear. In Robinett, the test is described as "caused or contributed to the commission of the offence". The Supreme Court in Carr endorsed that test. Accordingly the issue is whether I am satisfied on the balance of probabilities that the actions of the officer caused or contributed to the actions of the defendant in making a threat. 33 The first thing to note is that the comments said to constitute the offence were most proximate in terms of time, being only moments after the arrest. There is no hiatus or significant gap in time. The physical resistance was concomitant with the arrest. The words were spoken almost immediately after the young person had been locked in the caged portion of the vehicle. In Carr the alleged intimidation offence took place some time later and was directed to an officer who was not even present at the improper arrest. Yet the Supreme Court found that there was sufficient link for the evidence to be excluded. 34 Secondly, the officer's evidence is that the arrest of the young person led to the defendant becoming more aggressive and agitated. Up until that time the defendant had been uncooperative, but without swearing or threatening. Following and during the arrest it is clear from the evidence that the temperature went up. It is possible that the arrest did not contribute to the offence in the sense that the defendant could have become abusive and threatening at any rate. However, in my view a reading of the statements of the police and of the transcript supports the conclusion that it is more likely than not that the illegal or improper arrest contributed to the offence. I would not characterise the contribution as minor. In my view it was substantial. The defendant was clearly upset by the arrest of the young person. He went over to the pair and held both the officer and the young person. It would seem most likely that the defendant was able to restrain himself from further physical contact with the police in trying to release the young person following being threatened with a summons, but not from yelling threats as he departed. It is more likely than not that if the young person was not arrested that the threats would not have been made. 35 Thirdly, I am mindful of the Supreme Courts comments in Carr at para 63 with respect to the circumstances of the individual case. Clearly had the defendant pursued his physical intervention further, and committed serious bodily harm to the officer then it would be, on the basis of the Carr findings, less likely to be "in consequence" of the initial impropriety or illegality.