R v McLeay

R v McLeay - [2009] NSWLC 29 - NSWLC 2008 case summary — Zoe

[75]

The next witness called in the Prosecution case was MR CAMERON McDONALD. He was at the time an equities trader employed by the Macquarie Bank. At the time these events unfolded he was standing in the GPO colonnaded area but that part which was at the corner of Pitt Street and Martin Place. He was finishing his lunch break and having a cigarette. He observed motor vehicles (including police vehicles) upon Pitt Street. He also saw police at various locations nearby, some directing cars. He saw a few pedestrians including a group of three. He saw two of this group, but one of them side-stepped a police officer. He now knows this police officer to be Senior Constable Heather. He saw this officer move quickly in front of the person who had side-stepped him who he now knows to be the accused. They appeared to talk to each other but he himself could not discern the words that were being said. He saw the accused move his arms up and down at the side and then observed him to move off in his direction, i.e. from the eastern side of Pitt Street to the western side. Constable Heather then moved off quickly and moved in front of him and the accused stopped. Shortly after, the accused moved again and McDonald heard the officer say loudly: "Sir! Sir!" The officer moved after the accused and then grabbed him by the elbow. He said that the accused yelled but he did not recall what he said. The police officer then "propelled" the accused across Pitt Street, to the western kerb. Words continued to be said but the witness does not remember what was said. He said that he saw the pair move into the arcaded area of the GPO building. Mr McDonald moved to a position such that he says he had an unobstructed view of what was going on further along the arcade to the south. He says that he was standing about 10 metres away from the group (given Sergeant Shaw's evidence, I would think it was somewhat more than this). He says at no time did he see Senior Constable Heather let go of the accused's arm (T.27/6/08, p.111.27).

[115]

However, on the charge bought pursuant to s.199 of LEPRA, I was satisfied that there was a prima facie case on the evidence. I initially asked Mr Corish to address me on the second leg of May v O'Sullivan, namely, that there was insufficient evidence to convince the Court beyond reasonable doubt. I say initially, because having further heard from both parties, I thought it was more appropriate that I give myself a Prasad direction in relation to this charge. The direction is so called because of what King CJ said in Prasad (1979) 2 A Crim 45 at 47:- "It is, of course, open to the jury at any time after the close of the case for the Prosecution, to inform the Judge that the evidence that they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more…..I have no doubt that a Tribunal which is the Judge of both law and fact [as is the Local Court] may dismiss a charge at any time after the close of the Prosecution case, notwithstanding the fact that there is evidence upon which the Defendant could lawfully be convicted, if that Tribunal considers that the evidence is so lacking in weight and reliability that no reasonable Tribunal could safely convict on it." It was my view that at the close of the Prosecution case in relation to this charge, the evidence was insufficient to justify a conviction because it lacked weight and reliability and it was not reasonable to safely convict on it.
My difficulty with the Prosecution case was caused by what was said and what happened when Senior Constable Heather approached the accused and gave him the direction, the breach of which direction was relied upon to found the charge. I have set out in some detail the evidence of Senior Constable Heather, particularly the evidence given in cross-examination in relation to words and actions that took place on the eastern side of Pitt Street. I accepted that his version of events was in varying degrees different from the observations of, for instance, Constables Crowley and Gibb, and Sergeant Shaw, and to a lesser extent, Mr Lopez. However, Constable Heather was the witness present at the event and a participant in the exchange. All the others were attending to various other duties at the time and their attention was drawn from those duties by way of distraction of the loud words they heard. Allowing for the momentary inattention as they refocussed from their other individual tasks at hand to the event that were occurring up the street, perhaps 10 maybe up to 20 metres away, depending upon the positioning of these witnesses, I had no difficulty in accepting Senior Constable Heather's evidence as the acceptable version of what in fact occurred at the spot of the exchange between himself and the accused. This is set out at page 49-50 of the transcript of evidence of 26 June 2008. I have set this out fully earlier. Put simply, the sequence of events was as follows:-

[163]

Section 99 of LEPRA deals with the situation where a police officer may arrest a person without warrant, such as was the situation being dealt with by the Court. "99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence,…"
By s.99(1) and (2), a police officer has a discretion to arrest in the circumstances set out. Section 99(3) deals with a prohibition on arresting someone for the purposes of taking proceedings, except in circumstances as set out.
I have set out earlier the circumstances in which the Senior Constable purportedly arrested Mr McLeay. I have found that in fact Mr McLeay had not failed to comply with a police direction for the reasons I have indicated. Even if Mr McLeay had failed to comply with a direction, a police officer does have a discretionary power of arrest under s.99(1)(a) and (b) but he is still bound by s.99(3). He is also bound by s.201 because the power to arrest is a power under s.201(3)(a). Section 99(3) does not allow an arrest " for the purpose of taking proceedings for an offence….unless the police officer suspects o reasonable grounds that it is necessary to arrest the person… [relevantly]; (b) to prevent a repetition or continuation of the offence or the commission of another offence" .

[168]

Q. You mentioned discretionary power. Where does that discretionary power arise? A. Well, I don't think it's a written act. I think it's more, you know, comes with the office of Constable. You know if we arrested everyone for everything we saw, you'd be doing nothing else but arresting people." (T.26/6/08, p.48.3-23) 105. Where I would possibly disagree with the Senior Constable is that, in my view, by crossing the road, the accused had not committed an offence at all, either in fact or technically. Rather, he had placed himself in a situation where he was liable to be subject to a direction, i.e. under s.14. The only conceivable situation allowing for arrest that could have arisen was potentially a failure to comply with a direction, but for the reasons that I have given earlier, as a matter of fact that the situation did not, and could not arise. I therefore conclude that there is no basis under s.99 for Senior Constable Heather to have arrested Mr McLeay. As a matter of fact, I have found that this is exactly what the Senior Constable did. His action, therefore, is in contravention of s.99, and therefore the purported arrest was unlawful. I have already found that this situation (i.e. of the arrest) continued up until and indeed during the events complained of. These events therefore occurred during the currency of an unlawful arrest, this arrest having been carried out by Senior Constable Heather. Section 58 of the Crimes Act requires, as an essential element, that the events complained of, i.e. both the assault and the resist, be actions taken against a police officer in the execution of his duty. Such an element must be established beyond reasonable doubt. The High Court considered this in Coleman v Power & Ors [2004] HCA 39, McHugh J says at paras 117 and 118:- "117. …It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing… 118. An officer who unlawfully arrests a person is not acting in the execution of his or her duty." The continuance of the arrest by the Senior Constable was an action which was outside of his duty, creating a situation where his continued action was not one that occurred in the execution of his duty and this continued for as long as he maintained the unlawful arrest.

[172]

All of these cases precede the operation of LEPRA, that, although assented to on 29/11/02, did not commence by proclamation until 1/12/05. Whilst LEPRA allowed for the continuance of the common law in relation to the powers of a police officer and the execution of those powers (s.4) the Act had as its object and purpose that which was referred to by the Attorney General at the time in the second reading speech. Mr Debus said as follows:- " This Bill represents significant law reform. It radically simplifies the law in relation to law enforcement powers, setting out in one document the most commonly used criminal law enforcement powers and their safeguards…matters included in the Bill represent a codification of the common law, a consolidation of the existing statute law, clarification of police powers or a combination of these. While generally the Bill simply re-enacts existing legislation, it does in some circumstances make amendments intended to more accurately reflect all areas of the common law and to address areas in the existing law where gaps have been identified. Unless expressly stated, the Bill is not intended to change the common law…" (Hansard, Legislative Assembly, 17/9/2002). In my view s.99 codifies the powers of arrest. Use of the words "may" and "must not" delineate areas of discretion and obligation when a police officer exercises the power of arrest. I have found that Senior Constable Heather did not comply with s.99 and therefore the purported arrest was unlawful. S.99 was not in force when the circumstances with which these cases dealt occurred. Those cases of course will still provide guidance in a situation, for instance, with a charge that is being dealt with by the Court does not involve as an essential ingredient, such as the case in s.58, that a police officer be acting in the execution of his duty. For instance, if an accused had been charged pursuant to the provisions of s.61, and the events that took place that constituted the factual basis for the charge of common assault occurred during the continuance of an unlawful arrest, an accused may still be found to be guilty. However, the s.61 alleged assault would have occurred during the continuance of an unlawful arrest, and undoubtedly it would present a situation that would give rise to the Court having to consider the provisions of s.138, and whether or not the discretion allowed for under s.138 would be exercised in favour of the prosecution. The cases that I have referred to would provide guidance. (c) There are no decisions of appellant courts that I have been able to find that deal with s.99 of LEPRA. There are a number of decisions of this Court and, in particular, the decision of Helpern LCM in P v McLean (2008) NSWLC 11, that deal with the effect of LEPRA and, in particular, the codification of the power of arrest provided for by s.99. His Honour's opinion in this decision is the same as mine. The benefit of this codification allows a Court, subject obviously to the vicissitudes of evidence and the consequential findings of fact, to arrive at a decision as to the lawfulness or otherwise of an arrest, i.e. whether or not it is in conformity with s.99. If the arrest is found to be unlawful after the relevant considerations, and the charge is one pursuant to the provisions of s.58, then the Prosecution will fail to establish an essential ingredient of the offence. However, if the charge laid against the defendant is otherwise, then a finding of unlawfulness of arrest will lead to a consideration of s.138 of the Evidence Act as I have said.

[174]

(e) If I am wrong in my findings of fact that allows me to conclude that the arrest was unlawful, the Prosecution would still potentially have difficulty in any event with compliance with s.201. Arrest is the exercise of a power covered by s.201(3)(a). Therefore, s.201(1) must be complied with unless strict compliance is excused by s.201(2). What a combination of these two sub-sections requires of an officer in the position of the Senior Constable is that he provide his name and place of duty and the reason for the exercise of the power and unless it is not practical to do so, this information must be provided before or at the time of executing the power. These requirements were not complied with. It was a situation where there were very few people in the area (possibly 50, but more likely 8 to 20 people). It was not a scene, for example, of a demonstration or a large jostling crowd. On the evidence, it was all fairly low key with ordinary members of the public going about their perfectly legitimate activities. There was no evidence that Mr McLeay was exhibiting excessively aggressive or anti-social behaviour. He was just a normal member of the public walking in the area. There is nothing in the evidence to excuse compliance with s.201(1). It is accepted that eventually, at some discrete period of time after the purported arrest, when the accused and the Senior Constable were in the colonnaded area, that s.201(1) was complied with. There is no explanation as to why this was not done "before or at the time of exercising of the power". Given s.201(1) and (2) are put in mandatory terms, this failure in my view may well have led to a conclusion that the arrest was unlawful. (f) Finally, if I am wrong on both bases upon which I have concluded that the arrest was unlawful, then I would have to consider the evidence of what occurred between the Senior Constable and Mr McLeay and decide whether the evidence would allow one to conclude that the Prosecution has established its case factually beyond reasonable doubt. The Prosecution places weight upon the evidence that Mr McDonald as being corroborative of the version of events attested to by Senior Constable Heather. However, I have some concerns about the reliability of the observations of this witness. These concerns are based upon the following considerations:- (i) All of the observations that this witness made were from a distance of at least 10 metres, if not a little more, albeit with unobstructed view.

[178]

(v) This witness sees the accused step forward to the Sergeant, and says that the accused appeared "out of the blue" to give a double-handed push to the Senior Constable. The evidence of both the accused and the Senior Constable is that the accused's hands went up after the Senior Constable had "check-drilled" the accused. This witness obviously did not see this. He specifically says as follows:- " Q. Did you see any physical interreaction between anyone immediately prior to the double handed push [by the accused]? A. Not until that stage, no." (T.27/6/08, p.114.41-44) He did not see the accused reach out with his hand towards the Sergeant (T. 13/11/08, p.27.21-24, and at 45-49 and again at p.32.11-15). None of this would suggest that Mr McDonald was doing anything other than his best to recall the events. However, his recall of what he observed, particularly at the important time immediately before the arrest for the alleged assault by the Senior Constable, shows elements of inattention. He sees the hands of the accused go up and the accused said they did but rather as a reaction to the push by the Senior Constable, this being a push Mr McDonald did not see. This combined with the matters that I have referred to in (ii), (iii) and (iv) set out above, reinforce my reservations and supports my conclusion that his evidence, at the critical point, does not corroborate either version of the events that occurred immediately before the exchange began between the two. Sergeant Shaw does not assist the Prosecution either. He was concentrating on recording the accused's details. Further, he cannot corroborate any impending assault by recourse to what he felt. When asked as to his concerns when the accused moved forward he said as follows:- " I didn't really have time to have a concern. I was aware he'd moved towards me but before I could react, Senior Sergeant Heather had stopped the accused from coming any further." (T.27/6/08, p.42.40-42) I appreciate that the Sergeant does say he saw a push from Mr McLeay, but given that it all happened very quickly, in very close quarters, and he was engaged in any event in writing down material at the time, I do not give enormous weight to his evidence in this regard.

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