R v Scott

District Court of NSW|2021-04-29

Judgment

On 19 April 2021 Joshua Scott appeared before the Gosford District Court for trial. The accused was arraigned on an indictment in the following terms: Count 1 - on 18 February 2020 in Gosford in the state of New South Wales did cause grievous bodily harm to Leading Senior Constable Hayley Marks, a police officer acting in the execution of her duty and at the time was reckless as to causing actual bodily harm to her (s 60(3), Crimes Act 1900 (NSW)). In the alternative, Count 2 - on 18 February 2020 at Gosford in the State of New South Wales did assault Leading Senior Constable Hayley Marks, a police officer in the execution of her duty, thereby occasioning actual bodily harm to her (s 60(2), Crimes Act).

Summary of the Crown case at trial

Stated briefly, the Crown case at trial is that on 18 February 2020 Senior Constable Marks and Constable Kozaruk attended a unit in Gosford to arrest Ms Tina Rivers-Lloyd. The accused is the partner of Ms Rivers-Lloyd. Upon arrival of police at the unit, the accused answered the door. He went and spoke to Ms Rivers-Lloyd and told her police wanted to speak with her.
The accused did not want police to come into the unit. Senior Constable Marks placed her foot in the door of the unit so he could not close the door. Police then entered the unit and there was a short struggle with the accused before police escorted Ms Rivers-Lloyd from the unit.
Whilst police were still in the hallway outside the unit with Ms Rivers-Lloyd the unit door was opened by Leading Senior Constable Marks. Constable Kozaruk saw the accused holding a knife. Shortly thereafter Constable Kozaruk drew his Taser and Leading Senior Constable Marks drew her firearm. She subsequently re-holstered her firearm and took out her OC spray and sprayed the accused.
Constable Kozaruk re-holstered the Taser. Constable Kozaruk then forced the accused to the ground inside the unit. There was a struggle between both police and the accused inside the unit during which the accused kicked Senior Constable Marks' hand which fractured the scaphoid bone of her wrist. The injury required surgical fixation. Leading Senior Constable Marks has ongoing pain and movement issues (Count 1 and, in the alternative, Count 2).
There was no evidence called in the defence case at trial.

Application pursuant to s 138, Evidence Act

The accused has sought exclusion of the evidence of Leading Senior Constable Marks and Constable Kozaruk concerning the commission of the alleged offences on the basis that the evidence was obtained in consequence of a contravention of an Australian law (s 138(1)(b), Evidence Act).
In summary, it is submitted that: 1. The entry to the unit was unlawful in circumstances where the purpose of the entry was for an unlawful arrest and also police did not provide the reason for the exercise of the power (ss 10 and 202, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (hereafter "LEPRA")). 2. The arrest of Ms Rivers-Lloyd was unlawful in circumstances where police had not yet decided whether to charge her at the time of her arrest (s 99, LEPRA); and 3. Further, that the force used during the arrest of the accused was unlawful in circumstances where it was not reasonably necessary to make the arrest (s 231, LEPRA).

The relevant law

Section 138(1), Evidence Act relevantly provides as follows: "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."
Section 138(3), Evidence Act provides: "Without limiting the matters that the Court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (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 International Covenant 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."

Onus of proof

The onus is on the accused to establish on balance of probabilities that the evidence sought to be excluded was obtained in consequence of a contravention of an Australian law. Once that onus is discharged, it is for the Crown to satisfy the Court that the desirability of admitting such evidence outweighs the undesirability of admitting it, given the way in which it was obtained: Parker v Consul General of Customs (2009) 252 ALR 619; HCA 7. The Court is to find any fact necessary for deciding whether the evidence should be admitted or not on the balance of probabilities (s 142, Evidence Act).

Summary of evidence on the s 138, Evidence Act application

The following witnesses gave evidence on the application: 1. Constable Dean Kozaruk; 2. Leading Senior Constable Hayley Marks; 3. Senior Constable Annalese Ryan; 4. Dr Steven Marchalleck; and 5. Tina Rivers-Lloyd.
The following exhibits were tendered on the application: 1. Exhibit A - COPS entry; 2. Exhibit B - A photo of the unit; 3. Exhibit C - A floor plan of the unit; 4. Exhibit D - Body-worn video; 5. Exhibit E - Taser video; 6. Exhibit F - A photo of a ripped shirt; 7. Exhibit G - Two still photos from body-worn camera; 8. Exhibit H - Three still photos from body-worn camera; and 9. Exhibit J - '000' call made by Ms Rivers-Lloyd.

Evidence of Constable Dean Kozaruk

On 18 February 2020, Constable Kozaruk was tasked to follow up a domestic violence incident involving Ms Rivers-Lloyd. He was provided with a COPS event in relation to the incident (Exhibit A). In summary, it was alleged that Ms Rivers-Lloyd had made repeated phone calls to a person with whom she had been in a relationship for approximately five weeks, Mr Steven Robinson. A claim had been made about such conduct by Mr Robinson to police on 13 February 2020.
Constable Kozaruk made a decision to arrest Ms Rivers-Lloyd after reviewing the DVEC video. He had not made any decision in relation to charging Ms Rivers-Lloyd. He intended to make that decision after he gave her the opportunity to be interviewed.
At 3.05pm on 18 February 2020 he was working with Senior Constable Marks. They attended Unit 272, 80 John Whiteway Drive, Gosford. This was Ms Rivers-Lloyd's address. The accused lived at the address with Ms Rivers‑Lloyd. He was her partner.
Upon arrival at that address Senior Constable Marks knocked on the door. The door was answered by the accused. Constable Kozaruk asked whether "Tina" was home. The accused told police that she was in the bedroom. The accused shut the door and walked away. He then came back to the door and said Ms Rivers-Lloyd was in the bedroom and did not want to speak to police, and asked police to leave a card. Constable Kozaruk said that he needed to speak to her now. The accused told police they were not speaking to her now and he tried to shut the door to prevent police from entering.
The accused's mood changed from initially being calm to being more agitated. He started raising his voice and became more combative. Leading Senior Constable Marks then put her foot in the door to prevent it from closing. Constable Kozaruk at this stage activated his body-worn video camera. Constable Kozaruk confirmed that the body-worn video was activated when Leading Senior Constable Marks had put her foot in the door. The body-worn video became Exhibit D in the trial. A transcript was also available. The video is of 18 minutes duration.
For the purposes of determining the application, I have viewed the body-worn video on a number of occasions. What is shown on the body-worn video can summarised as follows.
The body-worn video commences while Leading Senior Constable Marks and Constable Kozaruk are standing outside the door to the unit. The accused is also outside the door with it almost closed whilst he is speaking to police. Police advise the accused that they need to "speak to" Ms Rivers-Lloyd. The accused has told the police she was asleep. Both police officers placed a hand on the door to prevent it from being closed by the accused. The accused says, "You're not forcing your way in here". Police both respond, "Yeah we are" and tell the accused, "You're not shutting the door. You don't get a choice, we're coming in" (1:39). The accused responds, "No you're not, she will come out then, thank you very much". The police then force the door open and tell the accused, "Move out of the way". The accused responds, "No, fuck off cunt". Both police tell the accused to get out of the way and that he will be charged for resisting arrest and that he is hindering a police investigation.
There is then a struggle between the accused and police. Constable Kozaruk tells the accused, "Get out of my face mate" and pushes the accused. The accused replies, "I'm not in your face you fucking lying dog cunt". The police attempt to take hold of the accused. He tells police, "Get your fucking arms off me" (2:13). Police are repeatedly telling the accused to "calm down". The accused responds, "I'm not doing anything fucking wrong, cunt. I'm in my own fucking house" (2:21).
Ms Rivers-Lloyd then comes to stand between police and the accused and tells police, "Stop it". She tries to calm the situation. Police tell the accused, "We need to speak to Tina, all right". The accused responds, "I said she would come down, you fucking didn't have to fucking do that". Police tell the accused he is hindering their investigation. The accused tells police, "Let go of me" (2:54). Ms Rivers-Lloyd asks police to leave her house and she will come out. The accused yells out, "You're a fucking dog cunt mate" (3:00).
The two police officers leave the unit and stand in the hallway outside. The door of the unit is closed (3:18). Ms Rivers-Lloyd is outside with police. Whilst outside with police Ms Rivers-Lloyd says to police, "Get your hands off me, I'm going to make a complaint against you". Constable Kozaruk contacts police radio and requests assistance. He asks Ms Rivers-Lloyd if the accused is suicidal and tells Leading Senior Constable Marks, "We need to go back in there, he's going to go off". Ms Rivers-Lloyd responds to police, "No he's not, just leave him alone, he's got to go to work".
Leading Senior Constable Marks opens the door of the unit (3:55). The accused yells, "Who the fuck do you think you are cunt?" The door slams and Constable Kozaruk yells out, "Get back, get back, he's got a knife, urgent" (4:09). Leading Senior Constable Marks points her firearm at the door, Constable Kozaruk points his Taser at the door. Ms Rivers-Lloyd says, "He didn't have anything". Constable Kozaruk contacts police radio and advises them that there is a male with a knife.
The accused then opens the door of the unit (4:37). Police tell the accused to get on the ground. The accused responds, "I've got my fucking phone in my hand you fucking idiot" (4:46). Police repeatedly tell the accused to come outside. The accused walks out of the doorway with his phone in his hand. He is repeatedly told by police to get on the ground. The accused responds, "Fuck off, you just came in and attacked me and then you fucking force your fucking way in, just because you want to fucking ask her a fucking question" (5:29) "and then you say I've got a knife. You are a crazy cunt" (5:41).
By this stage the accused is being very loud and aggressive towards police. Leading Senior Constable Marks re-holsters her firearm and obtains her OC spray (6:15). There are children heard crying inside the unit. Constable Kozaruk requests urgent assistance via police radio. The accused asks police "Why are you being so mean you fucking idiot. What did I do?" Police tell the accused they don't want "the kids" involved. The accused responds, "Well why do you fucking force your way in, you fucking stupid slut. Fuck off". The accused is continuing to yell loudly and aggressively at police. He states, "How do you have the right to fucking push your way in you fucking stupid slut" (7:12).
Leading Senior Constable Marks deploys OC spray towards the accused (7:32). There is then a struggle between police and the accused. Children are heard screaming and crying and asking the police to leave the accused alone. Police take hold of the accused. Constable Kozaruk has his hand around the accused's throat (7:56). The accused is handcuffed. He continues to struggle with police. He tells police, "You can't barge your way into my house and start beating the fuck out of me in the morning". Ms Rivers-Lloyd states "You've just barged into our house and started beating him up" (9:08).
The accused continues to struggle with police whilst he is being restrained just inside the unit door. Police tell the accused to stop kicking. The accused says, "You need to fucking get out of my house" (9:45). The accused repeatedly tells police he is choking (between 10:22 and 11:05). The accused asks for water for his face because of the OC spray. At this stage he is on the ground handcuffed, and Constable Kozaruk has his foot on the handcuffs (12:13). The accused tells police, "You can't just fucking force your way in and bash me" (12:50). Ms Rivers-Lloyd is making a '000' call to report what is happening in the unit (14:18). Other police eventually arrive and the accused is forcefully removed from the unit into the lift (15:41). Ms Rivers-Lloyd is also placed under arrest (16:34).
Constable Kozaruk described his initial contact with the accused in the unit in the following way. He was facing the accused. The accused pushed him backwards with both hands and Constable Kozaruk told him to "get back" (T 10.26 19/4/21). He was asked about the knife that he saw. He said the knife was in the accused's left hand by his side. It was a silver black-handled knife. He was asked when he saw the knife. He said he was 2 to 3 metres away from the accused when he saw the knife. It was after seeing the knife that Leading Senior Constable Marks removed her firearm and pointed it towards the door. Constable Kozaruk pointed his Taser towards the door. The Taser video was played in evidence (Exhibit E). It is of 3 minutes and 27 seconds duration. A transcript was also available. The Taser video stops when the Taser is re‑holstered.
Constable Kozaruk gave evidence that he re-holstered the Taser so he could arrest the accused. He was intending to arrest him in relation to his earlier action of assaulting police and also for being armed with a knife. He proposed to charge him with those offences. He described the second altercation between himself and the accused in the following way.
The accused punched him in the middle of his face. He attempted to get the accused on the ground and then the accused grabbed him around his chest area. The accused also ripped his shirt. He continued to kick and scream. A photo of Constable Kozaruk's uniform showing a ripped collar was tendered on the application (Exhibit F).
Constable Kozaruk described the accused's actions towards him as being kicking out, lashing out with his arms and swearing. He also described requesting handcuffs from Leading Senior Constable Marks. The accused was spitting towards police and also tried to bite him on his wrist. He has then lashed out with his feet and contacted with Leading Senior Constable Marks' chest. He saw the accused's legs coming towards Leading Senior Constable Marks.
In relation to the accused reaching out to grab for Leading Senior Constable Marks' firearm, he described that the accused could not grab it because of how the holster was designed. He said he made the decision to hold the accused's arms on the ground with his foot to stop him lashing out. He believed that that was when he kicked out. He also saw one of the children pour water over the accused's face. At the time other police arrived in the unit, he still had pressure on the accused's arms to prevent him from lashing out. Other police removed the accused from the house and he remained with the duty officer.
Constable Kozaruk gave evidence that as a consequence of his interaction with the accused he was very sore in his arms and legs and also his knee. He was seen at Gosford Hospital and sent home. He had OC contamination from the incident.

Cross-examination of Constable Dean Kozaruk

Constable Kozaruk was asked about the effects of OC spray. He agreed that it makes the eyes water and is a nose and throat irritant. He was asked whether people tried to spit out OC spray. He said he has never seen that. He was asked about the information he had available concerning Ms Rivers‑Lloyd. He gave evidence that he had the DVEC and the event narrative. He did not believe he had an interim ADVO. He agreed that if a provisional ADVO was served, that would protect the alleged victim.
He was asked why no determination had been made to charge Ms Rivers‑Lloyd before attending the unit. He said he wanted to give her the opportunity to give her version. He was asked why he did not tell Ms Rivers‑Lloyd she was under arrest upon first seeing her at the unit. He said he started to announce his office and then had to deal with the situation with the accused. He said he started to introduce himself to Ms Rivers‑Lloyd and then paused because of the situation with the accused. He was asked why he did not tell the accused he was there to arrest Ms Rivers-Lloyd. He said he did not want to escalate anything with the accused. He had made an assumption they were partners.
He agreed he had no warrant to enter the premises to arrest Ms Rivers‑Lloyd. He agreed he had no power to enter the premises to speak to someone. He said he entered the premises to affect an arrest. It was suggested to him that he was told Ms Rivers-Lloyd was going to come out of the unit, therefore there was no need for him to enter the premises. He said police weren't trying to force entry, police were trying to walk in and the accused prevented them from doing so. It was suggested to him that by putting a foot in the door that was forced entry. He said, "We were just trying to obviously keep the door open at the time" (T 21.20 19/4/21).
He was asked why he did not wait for Ms Rivers-Lloyd to come out of the unit. He said he did not believe that the accused would let police back into the unit, based upon his past experience and he believed Ms Rivers‑Lloyd was in the unit. He agreed in cross-examination that when he arrived at the unit he had not yet made a determination to charge Ms Rivers-Lloyd. He agreed that he was going to offer her an interview and, after that, make a determination in relation to charging her.
He was asked whether he was aware of the LEPRA requirements to announce his name, rank and the power being exercised and whether he complied with those requirements. He gave evidence that he was aware of the LEPRA requirements, however did not have time to comply with the requirements as it "escalated so quickly" (T 26.42 20/4/21). Once Ms Rivers-Lloyd was outside the unit, he said he was arresting her for telecommunications and stalking and intimidation offences. He gave evidence that he believed she had committed an offence but had not yet formed any intention to charge her at that stage.
He was asked whether he saw Leading Senior Constable Marks hit the accused's son whilst inside the unit on a second occasion. He said he did not see that at all. He did not recall the accused's son saying that he had been hit.
In relation to arresting the accused for the offence of armed with intent, he said his fear was that the accused had an intention to cause harm to police. In relation to when he saw the knife, he agreed that the body-worn video shows Leading Senior Constable Marks placing her hand on the door. He was asked what led him to believe that the accused was going to cause harm to police. He said: "I was of the opinion that he was proceeding out of the unit with, you know, the intent arming himself to cause fear, harm or hurt her. Any of those things" (T32.18 20/4/21).
He agreed the accused did not raise his arm as he was holding the knife. He said he was holding it by his side. He agreed that moments later the door was close. He was asked whether he can be sure he saw the knife. He said, "Yes, definitely" (T 32.34 20/4/21). He was asked whether what he could have seen was a phone. He said, "No, phones are square or rectangle, this wasn't square or rectangle" (T 32.38 20/4/21). He said the knife was in the accused's left hand.
He agreed that after the door was closed, he activated his Taser and Leading Senior Constable Marks had drawn her firearm. He agreed that when the accused opened the door again, he could not see the knife at that stage. It was suggested he could have arrested the accused whilst he was outside the unit. He said he did not want to approach him because of the knife and there were children in the unit. He agreed he was trying to de-escalate the situation by giving him instructions as to what he wanted him to do. He wanted the door of the unit shut and the accused away from the children.
He was asked about the deployment of the OC spray. He was asked whether the accused was walking towards police, that is, doing what police had asked him to do, at the time the OC spray was deployed. He said the accused was yelling and abusive at that stage. He said police wanted him to be on the ground. He agreed that after the OC spray was deployed the accused turned around and he ran towards him. He said that was to prevent the accused from going back into the unit. He did not want him to go back into the unit. He used his hands to try and get him on the ground which was ineffective. He agreed that at one stage he had his hand around the accused's throat. He said he had already been kicked and pushed. He said the accused was lashing out and grabbing his shirt. He immediately released his grip. He said it was later on in the assault that the accused said he could not breathe.
He was asked whether he did anything when the accused said he could not breathe. He said: "Not at that stage, he was sitting upright. It was towards the end of the incident and I had no fears for his breathing as he wasn't, we weren't holding pressure on anywhere that would cause that effect, nor was he restrained in any way to cause that" (T 37.17 - 37.20 20/4/21).
He believed the OC was necessary "because a violent confrontation had already occurred" (T 38.40 20/4/21). It was "very effective in controlling someone who's in a violent struggle or violent behaviour towards police" (T 38.42 - 38.43 20/4/21).
He was asked about the handcuffs. He agreed that the handcuffs did not click into the locking position. He agreed that if the accused moved around they would get tighter and that it is most likely the handcuffs would have tightened during the incident. He agreed he was using his foot to hold the accused's hands down. He said that was because the accused was lashing out with his arms. He was trying to control his hands. He was in handcuffs at this stage but still lashing out at police. He agreed that at one point he had his hand on the handcuffs. He said he had just witnessed the accused trying to grab Leading Senior Constable Marks' appointments. He agreed that the accused had tears in his eyes because of the OC spray. He agreed that the OC spray would make it difficult for the accused to see.
It was suggested to Constable Kozaruk that the accused did not have a knife and he could have been mistaken about what he saw. He said, "No, definitely not" (T 41.23 20/4/21). He agreed that he could have sought to arrest the accused on the second occasion he came out of the unit holding his mobile phone. He said police were trying to communicate with him. He gave evidence he did not find a knife at the house. He said he did not search the house for a knife.
In re-examination Constable Kozaruk was asked who it was that determined the offences in respect of which Ms Rivers-Lloyd was to be arrested. He said he did not determine the appropriate charges. He said it would have been Senior Constable Annalese Ryan who determined the charges. He again said in re-examination that he made the decision to arrest Ms Rivers-Lloyd and interview her before determining whether to charge her.
Two black and white still photos from the body-worn video were tendered in re-examination (Exhibit G). Constable Kozaruk was asked whether he could see the knife in the still photos. He said, "Not clearly I can't, no" (T 47.5 20/4/21). A further three still shots from the body-worn video were tendered (Exhibit H) showing Constable Kozaruk holding the Taser. The accused is seen with a mobile phone in his left hand. Constable Kozaruk said it was immediately after the accused was sprayed with OC spray and as he was trying to get back inside the unit when he decided to arrest the accused.

Evidence of Leading Senior Constable Hayley Marks

Leading Senior Constable Hayley Marks gave evidence that on 18 February 2020 she was working with Constable Kozaruk. She was aware that Ms Rivers‑Lloyd needed to be arrested in relation to a domestic violence incident. She attended 80 John Whiteway Drive, Gosford. Before attending Ms Rivers-Lloyd's unit, she had a copy of the police event and the DVEC. She said no decision had been made in relation to charging Ms Rivers-Lloyd before police attended the unit. She said she was not aware of any decision being made by any other officer that Ms Rivers-Lloyd should be charged (T 51.7 20/4/21).
About 7.30 am on 18 February 2020 she attended Ms Rivers-Lloyd's unit with Constable Kozaruk. Upon attending the unit the accused came to the door. He was told that police needed to speak with Ms Rivers-Lloyd. She put her left foot in the door as the accused tried to close the door. She described the accused became quite agitated. He said, "You're not coming in" (T 53.1 20/4/21). She said police entered the unit by force.
Ms Rivers‑Lloyd came out of the bedroom and was taken out of the unit. Whilst in the foyer she could still hear the accused from the unit. She heard the unit door open and heard Constable Kozaruk say, "Get back, get back, he's got a knife" (T 53.29 - 53.30 20/4/21). She drew her firearm and Constable Kozaruk took out his Taser. She did not see a knife. She could see the accused but was not able to see his hands. The accused went back inside the unit and closed the door again (T 53.33 - 53.34 20/4/21).
She described that a short time later the accused opened the door again and he was aggressive. Standing either side of the accused was his son and daughter. She re-holstered her firearm and took out her OC spray. She said the situation was escalating. The accused was waving his arms aggressively and the OC spray was deployed. The accused went back inside the unit.
She gave evidence that police followed the accused and attempted to place him under arrest. Police tried to restrain him. He was kicking her in the head and chest. She saw him punch Constable Kozaruk and heard him spit (T 54.40 - 54.41 20/4/21). She described the accused as kicking and punching the entire time. At one point she felt the accused grabbing at her firearm holster. At one stage she put her right hand up to block his foot from her face. His foot connected with her hand. She felt an instant sharp pain. The accused was saying to his son, "fucking hit her Kane" (T 55.6 20/4/21). She described that Ms Rivers-Lloyd had been arrested outside the unit.
She described that there was no other impact with her hand during the alleged incident. After receiving medical attention she was told she had a broken scaphoid bone. She also described being sore and bruised after being kicked. On 27 February 2020 she had an operative fixation of her wrist and a 20 mm screw was inserted which is permanent. She gave evidence she has not fully recovered from her wrist injury and it still hurts at times. There had also been impact upon a degree of movement of her wrist.

Cross-examination of Leading Senior Constable Marks

In cross-examination Leading Senior Constable Marks gave evidence that she had watched the body-worn footage in the days prior to giving evidence. She was asked about the reasons why she thought it was necessary to arrest Ms Rivers‑Lloyd. She said in order to protect the victim, to prevent repetition of the original offending and because of the seriousness of the offence. She said there was a policy that domestic violence offences should be taken seriously. She agreed that before arriving at the unit she had not made a decision to charge Ms Rivers-Lloyd and that such a determination was to be made after they had completed the investigation. She agreed that the general policy is that arrest is a last resort.
She was asked why she did not tell the accused that police were at the unit to arrest Ms Rivers-Lloyd. She said she did not know who the accused was. Further, she gave evidence she did not feel that she needed to tell the accused and also she did not know his part in the previous domestic violence incident and whether he knew about it.
In relation to forcing entry into the unit, she agreed that under LEPRA police are required to tell a person the reason for the exercise of a police power. She was asked why she did not do that. She said, "We weren't given that opportunity…The door was being shut on us as this conversation was taking place" (T 63.14 and 63.18 20/4/21).
She was asked whether she opened the door to the unit once she was outside with Ms Rivers-Lloyd. She said no. She was then shown the body-worn footage (Exhibit D). She agreed that in the body-worn video it looks like she did open the door. She said one of the police concerns was the welfare of the children inside the unit because the accused was inside yelling in a hostile manner.
She was asked whether a decision was made to use the OC spray on the accused as he was walking slowly towards police. She said "yes" (T 75.3 20/4/21). She was asked why she deployed the OC spray. She said the accused was still yelling aggressively, calling names and he did not start walking towards police immediately when requested (T 75.10 - 75.11 20/4/21). She was asked about the New South Wales Police policy in relation to the deployment of OC spray. She understood it could be deployed if she felt in danger of being overpowered or a violent confrontation had occurred, or was likely to occur.
It was suggested that she did not think the accused was going to hurt her. She said, "I did" (T 75.35 20/4/21). She said she was aware of the effects of OC spray and she had previously seen people trying to spit it out. She said once the accused went back inside the unit she moved towards him. She grabbed him inside the doorway. Constable Kozaruk already had hold of the accused at this stage. She saw Constable Kozaruk with his hand around the accused's neck. She was at his legs. She said she did not fall over at any point during the incident.
In relation to the injury to her wrist it was suggested that she did not have a memory of when she felt pain in her wrist. She said, "No, I disagree" (T 79.1 20/4/21). She was asked whether she saw a teenage boy with a water bottle coming towards the accused. She said she thought it was a glass of water. She was asked whether she used her right hand to push the teenage boy away. She said, "No" (T 80.19 20/4/21).
It was suggested to her she hit the teenage boy. She said, "Incorrect" (T 80.23 20/4/21). She said she did not see anybody hit the teenage boy. She agreed that she heard the accused say that he could not breathe. She was asked what she did about that. She said she spoke to the accused and said, "you're breathing fine" (T 80.46 20/4/21). She said she did not believe that he could not breathe, however she did attempt to roll him over onto his side because she was "trying to be fair" (T 81.9 20/4/21).
It was suggested that it was not reasonable to use OC spray at the time. She disagreed. It was suggested there was no escalation of his aggression to warrant her using it. She also disagreed.

Senior Constable Annalese Ryan

Senior Constable Annalese Ryan gave evidence that on 13 February 2020 she spoke to Steven Robinson who reported a domestic violence incident involving Ms Rivers-Lloyd. Mr Robinson played several voice messages left on his phone from Ms Rivers-Lloyd. Senior Constable Ryan took a DVEC statement from him. Mr Robinson reported that when he broke up with Ms Rivers-Lloyd on 9 February 2020 he had needed to call police for assistance to remove her from his property. He had followed advice from police and blocked her phone number. Since that time Mr Robinson had been receiving upwards of ten calls per day from Ms Rivers-Lloyd which were directed to his message bank.
Senior Constable Ryan gave evidence that she made a request to her station Sergeant that the matter be allocated to a car crew for the purpose of arresting Ms Rivers-Lloyd. She stated that this was in accordance within the Code of Practice for New South Wales Police Force Domestic and Family Violence Standard Operating Procedures.
She stated that this policy required "that charges will be laid against offenders where evidence exists to lay charges" (T 86.19 - 86.20 20/4/21).
Senior Constable Ryan gave evidence that the purpose of arresting Ms Rivers-Lloyd was to prevent: "…the harassment or interference with Mr Robinson who may have given evidence in relation to the offences and would also protect the safety and welfare of Mr Robinson" (T 86.30 - 86.33 20/4/21).
She said that she "did not want Ms Rivers-Lloyd to attend Mr Robinson's premises and injure him or damage his property" (T 86.33 - 86.34 20/4/21). Senior Constable Ryan said that her intention was to charge Ms Rivers-Lloyd. She attended the unit block on two occasions in the days following Mr Robinson's complaint. She was not able to speak with Ms Rivers-Lloyd on either occasion.
During the first attempt she left a police card with a phone number at the buzzer. She also called Ms Rivers-Lloyd several times and left voice messages but received no response. During the second attempt she gained entry to the unit complex and left a written note on the door saying she needed to speak to Ms Rivers-Lloyd in relation to a domestic violence incident. She was asked if she left any instructions for other officers regarding the matter. She said that she left a copy of the DVEC statement and a mini brief relating to the offence of using a carriage service to menace and harass.
She stated that an ADVO had been taken out for Mr Robinson's protection on 13 February 2020 which had not yet been served on Ms Rivers-Lloyd. Her instructions in terms of arresting and charging Ms Rivers-Lloyd were detailed in a COPS event.

Cross-examination of Senior Constable Annalese Ryan

During cross-examination Senior Constable Ryan agreed that serving an AVO on Ms Rivers-Lloyd would have served the same purpose as arresting her. She was asked whether arrest is considered an option of last resort for police. She replied: "In terms of domestic violence it's a bit of a crossover for us because we work under standard operating procedures as well, which tell us that if you have evidence of a domestic violence offence, arresting and charging is the best way to go" (T 92.22 - 92.25 20/4/21).
She agreed that compliance with standard operating procedures was her overriding consideration in making the decision to arrest Ms Rivers-Lloyd.
I note at this stage that the evidence of Senior Constable Ryan is of limited relevance in relation to the s 138 application in circumstances where neither Leading Senior Constable Marks nor Constable Kozaruk gave evidence that they were acting on a direction from Senior Constable Ryan to arrest Ms Rivers-Lloyd (s 99(2), LEPRA).

Evidence of Dr Steven Marchalleck

Dr Marchalleck examined Leading Senior Constable Marks on 20 February 2020. She was referred to him through Gosford Hospital. He reviewed x-rays and CT scans of her wrist. He gave evidence that these showed a mildly displaced fracture to the wrist scaphoid. He agreed that this is a serious type of injury if left untreated.
Dr Marchalleck performed surgery on Leading Senior Constable Marks' wrist on 27 February 2020 which involved the insertion of a permanent screw into her wrist. His last consultation with her was on 9 April 2020 during which she had a "good range of movement but not what I would consider her normal range of movement" (T 71.32 - 71.33 20/4/21).

Evidence of Tina Rivers-Lloyd

As at 20 February 2020 Tina Rivers-Lloyd was living with the accused and their three children, Paris (15 to 16 years old), Kane (14 years old) and Kikki, at Unit 272 of 80 John Whiteway Drive Gosford.
On 18 February 2020 she became aware that police were at the door of the unit after the accused told her police wanted to speak to her. The accused went back to the door. She gave evidence that she sat up in bed and could hear a commotion. She heard a loud crash and saw a male police officer pushing the accused. She jumped up and got in between the police officer and the accused. She described the accused as "looking like he was in fear. He looked tired, he looked like he'd just woken up" (T 114.45 21/4/21). She was then pulled out of the unit into the hallway by police. She was told to sit on the ground. She was not quite sure whether she was told that she was under arrest. She then saw the accused open the door to the unit. The male police officer said he had a knife. She was confused because he did not have anything. She described that she did not see weapons of any kind. She said she had a clear view of the accused.
The door of the unit was then shut and opened again. There was a lot of shouting, "drop the knife" (T 122.28 21/4/21) with the accused saying, "I don't have one" (T 118.32 - 118.33 21/4/21). She described the accused's tone of voice as being "still in fear" (T 119.15 21/4/21). She saw a taser pointed at the accused. She saw a female officer spray the accused with OC spray as he was in the doorway to the unit. She described that police then ran at the accused and he was forced to the ground. She described that at some point the accused put his hands out so police could put handcuffs on. The male officer was holding him down and put a foot on his chest. She said the accused could not breathe.
She described that she also saw there was a knee on the accused's chest. She said the male police officer was staying "stop resisting" (T 118.46 21/4/21). She described the accused as struggling "like a fish out of water" (T 122.38 21/4/21). She gave evidence that she made a '000' call to police. That '000' call was tendered in evidence (Exhibit J).
She described that at one stage her son tried to give the accused water and the female police officer struck his arm. She described it as a punch with a closed fist. She described her son went "flying backwards" (T 125.40 21/4/21). Eventually more police arrived and the accused was carried from the unit. She described that she was "yanked out" (T 127.24 21/4/21) of the unit by a female police officer.

Cross-examination of Tina Rivers-Lloyd

Ms Rivers-Lloyd was cross-examined by the Crown pursuant to s 38, Evidence Act in relation to the notebook statement she had made on 20 April 2021.
In cross-examination she agreed that she had told police that there was damage to two areas in the unit, near the front door and near a bookcase. She marked both areas of damage. She said the damage was still in the wall.
She was played various parts of the body worn video. It was suggested to her that the accused did not appear fearful. She maintained that she thought he appeared fearful. It was suggested that the video showed the accused as the aggressor. She disagreed. It was suggested to Ms Rivers‑Lloyd that the video does not show the accused voluntarily putting out his hands to be handcuffed. She said he did that when he was on the ground.
She described that the spitting was accidental when the accused was trying to spit OC spray from his mouth. It was suggested to Ms Rivers-Lloyd that she was trying to be supportive of the accused and trying to paint the police as the aggressors and the accused as the victim. She replied that the evidence speaks for itself (T 152.48 21/4/21).

Cross-Examination of Tina Rivers-Lloyd on behalf of the accused

In cross-examination Ms Rivers-Lloyd confirmed that the first time she had been asked to make a police statement was on 20 April 2021. Before making her statement she had not had an opportunity to watch the body worn video.
She confirmed she was in the process of getting up when the door of the unit was open. After being taken outside, she became aware the door of the unit had opened again. She did not see the accused with a knife. Once police were inside the unit on the second occasion she described that she saw the accused struggling and kicking his legs.
She was played portions of the body worn video and she identified a hole in the wall near the toilet door.

Submissions of the parties

Ms Hennessy on behalf of the accused submitted that the evidence establishes that there were the following contraventions of an Australian law: 1. An unlawful entry into the premises on the basis that firstly, the subsequent arrest was not lawful under s 99, LEPRA and accordingly, the police were not exercising the lawful power when they entered the premises and secondly, that the police did not provide the reason for the exercise of the power (ss 10(1), 99 and 202, LEPRA). 2. An unlawful arrest of Ms Rivers-Lloyd in circumstances where a decision had not been made to charge Ms Rivers-Lloyd at the time of her arrest (s 99, LEPRA). 3. An unlawful use of force during the arrest of the accused as it was not reasonably necessary to arrest him (s 231, LEPRA).
It was submitted that the evidence of Leading Senior Constable Marks and Constable Kozaruk concerning the subsequent offences allegedly committed by the accused was "obtained in consequence of" those contraventions of Australian law in circumstances where there was a causal link between the obtaining of such evidence and the unlawful conduct of police.
The following authorities were relied upon: DPP v Carr [2002] NSWSC 194, DPP v Coe [2003] NSWSC 363 and DPP v AM (2006) 161 A Crim R 219; NSWSC 348. I will outline the submissions in relation to each of those authorities later in my remarks.
In relation to s 138(3), Evidence Act, it was submitted that the Court would be satisfied that the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence having regard to, inter alia, the gravity of the contravention.
The Crown made the following submissions in relation to the asserted contraventions of Australian law: 1. It is lawful for police to enter for the purpose of arrest (s 10(1), LEPRA). It was further submitted that police had no obligation to provide the reason for entry to the accused in circumstances where s 202, LEPRA requires a reason to be given "to the person subject to the exercise of the power". The Crown submitted that such a person was Ms Rivers-Lloyd and not the accused. It was further submitted that it was not reasonably practical to provide the reasons before the exercise of the power of entry because of the accused's aggressive behaviour towards police and his attempt to obstruct their lawful actions (s 202(2)(a), LEPRA). 2. The Crown conceded that the arrest of Ms Rivers-Lloyd was unlawful in circumstances where no decision had been made to charge her at the time of the arrest (State of New South Wales v Robinson (2019) 266 CLR 619; HCA 46). 3. The force used during the arrest of the accused was lawful as it was reasonable in the circumstances having regard to the conduct of the accused (s 231, LEPRA). 4. Whilst the Crown conceded that the arrest of Ms Rivers‑Lloyd was in contravention of an Australian law, it was submitted that the evidence of the accused's subsequent conduct was not "obtained in consequence of" such contravention.
The Crown also considered the authorities relied upon by the accused. The Crown submitted that notwithstanding the causal link between the arrest of Ms Rivers-Lloyd and the aggression shown by the accused, the level of violence displayed and the ultimate causing of grievous bodily harm to Senior Constable Marks was not in any way proportional to, or compelled by, the actions of police. It was submitted by the Crown that the Court would not find that the evidence of the accused's actions from the point at which he produced a knife at the open door of the unit was "obtained in consequence of" a contravention of an Australian law.
In relation to the balancing exercise pursuant to s 138 (3), Evidence Act, the Crown submitted that the Court would find that the desirability of admitting the evidence outweighs the undesirability having regard to the following matters, the contravention was unintentional, the offences were serious, the evidence is of importance in the proceedings and the contravention is minor.

Was the first entry into the unit unlawful?

Section 10, LEPRA provides as follows: "(1) 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. (2) However, 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 State of New South Wales v Bouffler (2017) 95 NSWLR 521 the Court (Beazley ACJ, Ward and Gleeson JJA) stated as follows at [224] to [226]: "…Section 10(1) permits a police officer to enter a dwelling to arrest a person. If a police officer enters premises for some other purpose which is not authorised, for example, pursuant to s 9, the entry onto the property constitutes a trespass. This is a different question from whether an arrest is lawful, which requires that s 99 must be satisfied. Because ss 10 and 99 have different spheres of application, it is possible that a person may enter a property to arrest a person and thus not commit a trespass, but the arrest not be lawful because the police officer may be found not to have the requisite state of mind for the purposes of ss 99(2) or 99(3). This view can be tested by reference to the terms and application of ss 10 and 99. Section 10(1), on its express terms, applies to an officer who enters premises "to arrest a person" or to "arrest a person named in a warrant". Section 10(2) permits entry into a dwelling to "arrest…a person", whether that be with or without a warrant, "only if the police officer believes on reasonable grounds that the person to be arrested is in the dwelling". Section 99 is concerned only with the arrest of a person without a warrant. It is apparent, therefore, that on the plain words of each section, there is no sense in which s 10 can be described as, or operate only as, a derivative of s 99. Entry under s 10 is not, therefore, contingent on the arrest of a person being lawful pursuant to s 99."
Section 10(2), LEPRA provides that a police officer may enter a dwelling only if the officer believes on reasonable grounds that the person to be arrested is in the dwelling.
I am satisfied that Leading Senior Constable Marks and Constable Kozaruk entered the premises for the purpose of arresting Ms Rivers-Lloyd. Whilst the accused was initially told that they wanted to "talk to" Ms Rivers-Lloyd, I accept that the state of mind of each officer was that the purpose of their entry was to arrest Ms Rivers-Lloyd. I am also satisfied that each officer believed on reasonable grounds that Ms Rivers-Lloyd was in the unit in circumstances where the accused told police that she was in the unit. Accordingly, I am not satisfied that the entry was unlawful.

Did police provide the reasons for the exercise of the power of entry?

Section 202 LEPRA provides as follows: "(1) A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (2) A police officer must comply with this section: (a) as soon as it is reasonably practicable to do so, or (b) in the case of a direction, requirement or request to a single person - before giving or making the direction, requirement or request.
The evidence in relation to the reason given by police for entry into the premises establishes that the reason given by police for forcing entry was "to have a chat" to Ms Rivers-Lloyd. This was not the reason of the exercise of the power of entry. Both Constable Kozaruk and Leading Senior Constable Marks gave evidence that they attended the premises for the purpose of arresting Ms Rivers-Lloyd.
I am satisfied that it was the accused that was to be subject to the exercise of the power of entry in circumstances where he had refused police entry and that the real reason for the entry should have been provided to him. I am not satisfied that the police had no opportunity to provide the true reason for the entry whilst at the front door, in circumstances where I am satisfied there was ample time to tell the accused that they were entering the unit to arrest Ms Rivers-Lloyd.
Such reason should have been given at least by the time that Leading Senior Constable Marks had her foot in the door, preventing it from closing.
In circumstances where I am satisfied that s 202, LEPRA was not complied with by police before the exercise of the power of entry, I am satisfied on balance of probabilities that the entry into the unit was unlawful.

Was the arrest of Ms Rivers-Lloyd unlawful?

Section 99, LEPRA provides as follows: "(1) A police officer may, without a warrant, arrest a person if: a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law."
In State of New South Wales v Robinson [2019] HCA 46, the majority (Bell, Gageler, Gordon and Edelman JJ) held at [110] that an arrest pursuant to s 99, LEPRA can only be for the purpose of taking an arrested person before a magistrate or other authorised officer to be dealt with according to law to answer the charge. Further, that an arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with a crime is an arrest for an improper purpose and is unlawful.
The Crown has conceded during submissions that the evidence of each of Constable Kozaruk and Leading Senior Constable Marks establishes that they had not decided whether to charge Ms Rivers-Lloyd at the time of her arrest. In such circumstances, the Crown has conceded that the arrest of Ms Rivers Lloyd was unlawful.

Was the second opening of the door of the unit an unlawful entry?

After Ms Rivers-Lloyd is removed from the unit and whilst police were in the hallway, the door of the unit is opened and the accused is heard to say, "Who the fuck do you think you are cunt?" and the door slammed shut. It is then that Constable Kozaruk says, "He's got a knife".
It was submitted on behalf of the accused that this second entry is a continuation of police trying to enter the premises that they had no right to enter.

Who was it that opened the door?

Senior Constable Hayley Marks described in her police statement that she heard the unit door open. In cross-examination she denied opening the door or touching the door. After being shown the body worn video (Exhibit D at 3:53) she was asked whether she opened the door and she said, "It looks like it yes" (T 66.27 20/4/21).
She was asked the following: "Q. When you opened the door was it your intention to go inside? A. I'm not sure" (T 67.2 20/4/21).
I am satisfied that the body worn video shows Leading Senior Constable Marks reaching for the door handle and opening the door. When the door is open the accused is standing a short distance from the door (see still photos taken from the body worn video - Exhibit G).
What is not clear from the body worn video is whether there was an entry into the unit after the door was opened and before it was closed. The Crown has conceded that there would have at least been an entry to the extent that Leading Senior Constable Hayley Marks' hand went inside the unit when she opened the door.
In circumstances where Leading Senior Constable Marks gave no evidence of the exercise of a lawful power of entry at that stage, I am satisfied that the second entry was unlawful.

Was there an unlawful use of force during the arrest of the accused?

Section 231, LEPRA provides as follows: "A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest".
It was submitted on behalf of the accused that the following conduct of police constituted an unlawful use of force: 1. The use of OC spray by Leading Senior Constable Marks; and 2. The use of force by Constable Kozaruk, namely running towards the accused placing an arm around the accused's neck and placing a foot on his chest.
Leading Senior Constable Marks gave evidence that after she heard Constable Kozaruk say the accused had a knife, she initially drew her firearm and the accused then shut the door of the unit. Shortly thereafter, the accused opened the door and police told the accused to get on the ground. Leading Senior Constable Marks described that the accused was still yelling and behaving aggressively at this stage. It was at that time that Leading Senior Constable Marks used her OC Spray.
Leading Senior Constable Marks gave the following evidence in relation to the subsequent struggle with the accused (T 54.37 - 55.6 20/4/21): "The accused fell to the ground and we attempted to gain control of him by restraining him. I was trying to catch his legs which were kicking me in the head and chest numerous times. I saw him punch Constable Kozaruk in the face with a closed fist, I heard the accused spit. After wrestling with the accused for a period of time I managed to place one handcuff on his wrist. He was kicking and punching this entire time. I thought at one point the accused was grabbing at my firearm holster. Even after both the handcuffs were on the accused, he still continued to thrash around with the upper half of his body and kick me. On one of those occasions, I put my right hand up to block his foot from kicking my face. His foot connected with my hand and I felt an instant sharp pain. I continued. Attempted to gain control of the accused's legs despite feeling this pain. The male and the female children came towards us multiple times with glasses of water as the accused had asked for water. Given the extremely volatile situation we were already in and that I had my back to them and had to turn around, I told him to step back and take the water away. I was worried the glass would be used as a weapon. I pushed various glasses of water away multiple times."
In cross-examination, Leading Senior Constable Marks said she deployed the OC spray because the accused was still acting aggressively. I am satisfied that this evidence is supported by what is shown on the body worn video. Leading Senior Constable Marks disagreed that it was unreasonable to use the OC spray (T 81.38 20/4/21).
Leading Senior Constable Marks agreed that on a number of occasions the accused said that he could not breathe. She gave evidence that she told him he was breathing fine, and she did not believe he could not breathe.
Constable Kozaruk gave the following evidence in relation to what happened when he entered the unit on the second occasion (T 12.42 - 13.26 19/4/21): "Q. Is that the point where you entered the unit again? A. Not quite, it was when Senior Constable Hayley Marks used OC spray against the accused. Q. We can see that on the body worn video. A. Yeah, yes. Q. When you enter the unit? A. Yes. Q. Why did you do that? A. To effect the arrest on Mr Scott. Q. Why did you make the decision to arrest Mr Scott? A. Due to his actions of assaulting police previously, in the, within the hallway prior and armed with intent, well and armed with a knife I should say. Q. Did you propose to take any action with respect to the armed with intent? A. Yes, yes. Q. What did you propose to do? A. To be charged for those offences. Q. When you went in we've seen some of the altercation that followed? A. Yes. Q. Can you tell the Court firstly what occurred between yourself and the accused? A. So when, when I entered the unit Mr Scott has basically punched me straight to the middle or hit me straight in the middle of my face and obviously I had water straight from my eyes. And then I've attempted to get Mr Scott onto the ground, when he's proceeded to grab me around my chest area and around my appointments, my load bearing vest. He ripped my shirt with one of his arms and continued to kick and scream and lash out with his arms towards me.
Constable Kozaruk described the further conduct of the accused as follows (T 14.8 - 14.18 19/4/21): "Q. What interactions occurred between Leading Senior Constable Marks and the accused? A. So that's when we moved a little bit further into the, towards the bathroom, where the accused was on the ground. I recall requesting handcuffs off Leading Senior Constable Marks. At that time he was spitting towards us and trying to bite me, I believe, on my, on my wrist. Q. When you say, "he was spitting towards us", who was he spitting towards? A. Senior Constable Marks and I. And then, that's when he's lashed out with his feet towards Senior Constable Marks, which was evidently contacting her chest and she's trying to prevent those, sorry, prevent those kicks. Q. When you say that, you're demonstrating with your palms outstretched in front of yourself, with your arms crossed, is that right? A. Yeah because I was facing the accused, the body camera was facing him and I was looking at Hayley, who was to my right, and I could see that his legs were coming up towards Hayley, sorry, Senior Constable Marks."
Constable Kozaruk described that prior to the handcuffs going on the accused, he saw the accused's legs make contact with Leading Senior Constable Marks' chest area. He made a decision to hold the accused's arms on the ground with his foot to prevent him from lashing out.
In cross-examination Constable Kozaruk said that he used his hands on the accused to try and get him to the ground, this was ineffective, and they ended up inside the unit. He agreed he put his hands around the accused's throat. He said: "I believe I would have been trying to hold him away, because at that time he did in fact lash out and punch me in the face" (T 36.19 - 36.20 20/4/21).
Ms Rivers-Lloyd described the force used by Constable Kozaruk inside the unit in the following way (T 118.17 21/4/21): "Q. Did he come to the door once or more than once? A. I think that he - the door shut and then the door opened back up. Q. At some stage did he come out of the unit? A. No. Q. Did he at all times remain in the unit? A. Yes. Q. Can you tell the Court what happened next? A. At the time my daughter was, Kikki was standing next to him, there was a lot of shouting, she was upset. Q. Who was shouting? A. The police officers were saying, as I said they were shouting, she came to the door, the police officer was telling him to drop the knife, he said, "I don't have one". I think I'm pretty sure, and they got the Taser out, they pointed the Taser at him, then Kikki stood closer to him and they pointed it at her, then she went into a bit of hysterics, at which point I'm certain the female officer sprayed Joshua with capsicum spray in his mouth, nose, face, there was a lot of it. They then ran at him. The male collected with him, she was more behind him, he somehow I think he kicked him or something because he went to the ground, so he was, he had his hands up the top and he forced them to the ground but I think that his leg kicked him from behind, so like to knock him to the ground. At some point he said he tried to put, not tried, he did put the, the handcuffs on, Joshua put his hand out, I remember Joshua putting his hands out for the handcuffs and then it's so - and then he's on the ground, the officer was holding him down and he put his foot on his chest, then he put his boot on his chest, Joshua was in quite, he couldn't breathe, then he put his knee on his chest and he just kept telling him "stop resisting, stop resisting" yet he had no, he couldn't move, he could barely breathe, it was quite, it was quite clear. I actually thought that the thing that flashed across my mind was incidents that have happened, police incidents that have happened before where deaths have happened so I actually was in fear of his life at that point."
Ms Rivers-Lloyd described the circumstances in which the accused came to be handcuffed in the following way (T 121.8 - 122.32 21/4/21): "Q. You said the handcuffs were put on the accused? A. Yes. Q. I think you did a demonstration with your hands out in front of you? A. Yeah, I'm pretty sure that he put his hands out because I know he put one out first and then I'm pretty sure he put the other one out. Q. You're saying the accused put his hands out in front of himself? A. Yes. Q. He did that voluntarily? A. Yes. Q. And then do you say that then the handcuffs were put on? A. Yes. Q. And the police officer put his foot on the accused's chest? A. Yes. Q. Was the accused - how was he positioned at that point? A. On the ground with his head up against the wall in between the hallway so he'd moved, they'd moved slightly out of the thing and we just on to the so his foot was - they were in that just in the first part of the cavity as you turn around. Q. Was he on his stomach or his back or his side? A. On his back. Q. You said he couldn't breathe? A. Yes. Q. What made you think he couldn't breathe? A. Because when, when that started to happen I went into hysterics myself, I screamed and I jumped up and ran towards him and I was - by that time he had the foot on him, I was next to him and I had gotten on the phone. Q. I'll just again thought, what was it that made you think the accused couldn't breathe? A. I could see he visibly couldn't breathe, he had his eyes were all red, he was like frothing type at the mouth and he was in, his breath was labouring and he was… Q. Was he saying anything at that stage? A. I can't breathe. Q. Was he yelling anything at that stage? A. I think he asked for water. Q. You said he was frothing at the mouth? A. Yes. Q. Did you see him spitting? A. No, he might have spat, something might have come out of his mouth because as I said he was, he was, everything but he did not actually spit as in like voluntarily, involuntarily he did but not voluntarily. Q. At any stage did you see him voluntarily spitting? A. No. Q. You talked about the knee being put on the accused's chest. Did that happen at that stage? A. Yes. Q. You said police were saying, "stop resisting"? A. Yes. Q. But that he couldn't move? A. Yes. Q. Did you see him do anything with his legs? A. Yes, he was struggling, he was like a fish out of water. Q. Did you see him kicking? A. Yeah, I think so, as I said he was like convulsing really, I would say best describe it convulsing."

Was Constable Kozaruk exercising the power to arrest the accused at the time of the second entry?

At the time Constable Kozaruk wrestled the accused to the ground I am satisfied he believed he had seen the accused with a knife at the unit door (irrespective of whether the accused, in fact, had a knife) and was intending to arrest him for the purpose of, inter alia, protecting the safety of persons nearby.
Constable Kozaruk described what he saw as follows (T 11.39 - 11.50 21/4/21): "Q. Tell the Court what you saw. A. As I, I was facing the door at the time and the accused, the door's open and the accused is standing on the other side of the door and I've sort of peeked, twerked my body to the side and looked at him and whilst doing that, he had his left arm down by his side and what I could see was a silver blade with like a black handled knife and I've, as soon as I've seen that I've immediately screamed it, "he's got a knife". Q. How far away from you was the accused when you saw him holding the knife? A. Approximately two metres, maybe three metres max, probably closer to two."
In cross-examination Constable Kozaruk confirmed that the knife was in the accused's left hand and he did not consider he was mistaken when he saw the knife. I note that it was not suggested to Constable Kozaruk in cross-examination that he was lying about seeing the knife.
Having regard to the available evidence, I am satisfied on balance of probabilities that Constable Kozaruk honestly believed that he had seen a knife. In such circumstances, I am satisfied that Constable Kozaruk suspected on reasonable grounds that the accused had committed an offence and that he was satisfied it was reasonably necessary to arrest the accused to protect the safety or welfare of any persons (see ss 99(1)(a) and 99(1)(b)(viii), LEPRA; State of New South Wales v Randall [2017] NSWCA 88). Accordingly, I am satisfied that Constable Kozaruk at the time of the second entry to the unit was lawfully exercising a power to arrest the accused.
Having regard to the available evidence, I do not regard the force used by police as disproportionate to the threat that police believed they were facing, namely that the accused was armed with a knife, in circumstances where Constable Kozaruk indicates on the body worn video that he is unaware of the whereabouts of the knife and the body worn video also demonstrates that the accused continues to struggle with police whilst inside the unit. I am satisfied that the accused was vigorously trying to prevent police from arresting him. To the extent that Ms Rivers-Lloyd's evidence is to the contrary, I reject her evidence having regard to what is shown on the body worn video.
In such circumstances, I am not satisfied that it has been established on the balance of probabilities that the force used by Constable Kozaruk and Leading Senior Constable Marks to arrest the accused was not reasonably necessary. In such circumstances, I am not satisfied the use of force was unlawful.

Was the evidence of the alleged offences obtained "in consequence of" a contravention of an Australian law?

I am satisfied that the first entry into the unit was unlawful, the arrest of Ms Rivers-Lloyd was unlawful and the second opening of the door of the unit by Leading Senior Constable Marks was unlawful.
It has been acknowledged that difficulties arise when a court is required to determine this question where the evidence sought to be excluded pursuant to s 138, Evidence Act is of an offence which is said to have been caused by the impugned conduct (see Odgers, Uniform Evidence Law (13th Ed) at p 1283). It is clear that there must be a chain of causation established between the contravention of the Australian law and the obtaining of the evidence. What is not so easily resolved is whether the requisite causal relationship will be satisfied in the particular case.
The following authorities have considered the issue of causation with respect to offending caused by impugned conduct of police. In DPP v Carr (2002) 127 A Crim R 151; NSWSC 194 there was an appeal by the Director seeking, inter alia, a declaration that the Magistrate had erred in law in excluding evidence pursuant to s 138, Evidence Act of two police officers relating to charges of resisting police, assaulting police and intimidating police. The evidence was excluded on the basis that the arrest was improper. The respondent had been arrested for offensive language and it was alleged he subsequently committed offences of resisting police, assaulting police and intimidating police.
The Magistrate held that whilst the arrest was lawful, it was improper because the respondent should have not been arrested for a minor offence. Whilst there were a number of grounds of appeal, the ground of appeal relevant to the current application was whether the Magistrate had erred in finding that the evidence of events following the respondent's arrest was "obtained" improperly or "obtained in consequence of an impropriety" for the purpose of ss 138 (1)(a) and 138(1)(b), Evidence Act.
The Director had submitted in DPP v Carr that the mere fact that the respondent's conduct occurred after an impropriety did not mean that the evidence of those matters was "obtained" for the purposes of s 138(1), Evidence Act. It had been submitted that even if the arrest was improper the evidence of the respondent's words and acts which followed the arrest were not obtained "in consequence of the impropriety".
The respondent relied upon Robinett v R (2000) 116 A Crim R 492; SASC 405, where a failure by police to provide adequate medical treatment to a defendant was regarded as improper and it was held to have caused or contributed to the commission of subsequent offences. With respect to the balancing exercise it was held that the circumstances were not such that the public interest in securing a conviction for the relevant offence outweighed what would otherwise be condemnation of impropriety and unfairness.
Smart AJ in DPP v Carr considered whether s 138(1), Evidence Act can operate to render inadmissible evidence obtained of the commission of further offences following an improper act or omission by police, such as an ill-advised arrest, or the withholding of medical treatment. Smart AJ gave the following examples at [63]: "There is a distinction between the commission of further offences by the 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. A number of situations may arise. The person arrested may in a state of anger at his ill-advised arrest commit a serious crime, for example, attempted murder or maliciously inflict grievous bodily harm with intent to do so. In such a case, the evidence of those subsequent acts would be admitted. On the other hand he may commit a relatively minor crime such as a mild assault or resist arrest. Further, he may, if moderately intoxicated, utter threats never intended to be carried out. There is also the example of a reaction at the police omitting to summon necessary medical or other attention when they should have done so".
Smart AJ further observed as follows at [68]: "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".
In DPP v Coe [2003] NSWSC 363 the Director appealed against the dismissal by a Magistrate of three charges of assault occasioning actual bodily harm, assaulting a police officer in the execution of his duty occasioning actual bodily harm and common assault. The Magistrate had excluded the evidence of a police officer in relation to the alleged offences, on the grounds that the evidence was obtained improperly in contravention of s 138, Evidence Act.
The impropriety alleged was an unlawful arrest or attempted unlawful arrest of a person. It was alleged that the police officer was punched to his head from behind, struck to the ground and kicked whilst he was on the ground by a second person after he had sought to arrest the first person. The question for determination on appeal was whether it was reasonably open to the Magistrate to exclude the evidence of the alleged assault upon police on the application of s 138, Evidence Act.
Adams J considered the question of whether the evidence of the alleged assault by the second person was obtained by the improper actions of police. He observed as follows at [12]: "It seems to me that something more than a mere causal link or (to use the learned magistrate's language in the instant case) "trigger" is necessary before s 183 comes into play. In DPP v Carr (2002) 127 A Crim R 151, Smart AJ considered the application of s 138 as evidence of the offences of resisting police, assaulting police and intimidating police which were allegedly committed following the defendant's arrest for using offensive language. The impropriety found was arresting Carr for the latter offence rather than proceeding by way of summons, which was the appropriate cause of action. Smart AJ adopted the approach of Bleby J in Robinett v Police (2000) 78 SASR 85; 116 A Crim R 492, where evidence of the offences of threatening to cause harm and using offensive language arising from the defendant's behaviour at the police station was excluded (by the exercise of a common law discretion), essentially because there had been a failure by the police to provide adequate medical treatment to the defendant who was sprayed with capsicum when he was being conveyed to the police station following his arrest on other public order offences. Bleby, J posed the material questions as follows (116 A Crim R at 505) - "Three questions arise for consideration. The first is whether the conduct is of a type that could give rise to the exercise of the public policy discretion. Second is whether the conduct caused or contributed to the commission of the offence. If the answer is 'Yes' to both of those questions, it must then be asked whether it called for the exercise of the discretion to exclude the evidence."
Adams J continued at [13]: "…Bleby J held that the behaviour of the police "was not only inappropriate, but…fell into that category of impropriety or unfairness that gives rise to the exercise of the public policy discretion".
Adams J, relying upon the observations of Smart AJ in DPP v Carr, was of the view that the facts before him demonstrated that the response of the defendant to police conduct was: "[23] …so disproportionate and so serious an offence that, even if it was "obtained" by that conduct, was not caused by it. Accordingly, even if at common law the evidence of the offences may be excluded on proof of improper conduct that caused or gave rise to them, the defendant must also fail."
Specifically, in relation to the causal relationship necessary for evidence to have been "obtained" for the purposes of s 138, Evidence Act Adams J made the following observations at [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: Haddad v Treglia (2000) A Crim R 312 per Spigelman CJ at [73] 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 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."
In DPP v AM (2006) 161 A Crim R 219, the Director appealed against the decision of a Children's Court Magistrate to exclude evidence of offences of resist officer in the execution of duty and assault officer in execution of duty on the basis that the arrest of the defendant was unnecessary and improper within the meaning of s 138, Evidence Act. Hall J determined the appeal on the basis that the finding of impropriety was not open to the Magistrate, in relation to the arrest. Hall J made the following remarks (obiter), in relation to the necessary causal relationship for evidence to be "obtained" pursuant to s 138, Evidence Act in response to DPP v Carr and DPP v Coe at [80]: "With the greatest respect to the view expressed by Adams J in Coe at [24], I am unable to agree with all that is therein stated. Before identifying the area of disagreement, I record the following propositions: a) Where a law enforcement officer intentionally engages in purposive action designed or expected to procure or induce the commission of offences, then plainly evidence of those offences will have been "obtained" in relation to them. b) Where a person is subject to an ill-advised or unnecessary arrest but the suspected offender acts in a way which amounts to a disproportionate reaction, an issue may arise, as it did in Coe, as to whether that offence can, as a matter of causation, be said to be a consequence of the arrest. c) In other circumstances, however, offences that stem from an ill-advised and unnecessary arrest, may objectively be considered the anticipated or expected outcome and so "obtained" for the purposes of s.138. Carr is such a case. The reservation that I have expressed in the preceding paragraph relates to the observation of Adams J, that in the context of offences that are said to stem as an unintended consequence from an arrest, that there is a need to establish "conduct that was intended or expected (to a greater or lesser extent) to achieve the commission of offences" as a necessary and separate element in order to satisfy the notion of "obtained" in that context. In the passages quoted from the judgment of Adams J set out in paragraphs [77] and [78] above, the proposition is advanced that in cases of the kind referred to in the preceding paragraph, the word "obtained" in s 138(1) requires, in addition to a causal nexus, that the impugned conduct must either be "intended" or "expected" to achieve the commission of offences. However, cases involving an ill-advised or unnecessary arrest which result in unintended consequential offences by definition lack a purposive element. In other words, offences stemming from such an arrest occur without any intention on the part of the arresting officer to provoke such offences. It is, for that reason, that I cannot agree with Adams J that in such cases the word "obtained" cannot be satisfied unless the causal nexus is also accompanied by "something more" in the nature of "intended" conduct. I do, however, with respect agree with his Honour's observation that in order in such cases for evidence to be "obtained", it may, in some such cases, be necessary that the conduct (the arrest) be of a kind that could be "expected" to give rise to the commission of further offences. The reference to an "expectation" by Adams J in Coe may, in some cases, be a material aspect and Robinett and Carr could, as his Honour observed, be seen as examples of that proposition. However, I should add that in relation to the term "obtained" in s 138(1), the reference by Adams J to a need in some cases for there to exist circumstances from which the commission of offences may be expected seems to me not to involve or require proof of an element additional or separate to the essential causal relationship. Reference to what might be expected to follow from certain conduct essentially, in my opinion, relates to the likelihood of an event occurring. In other words, whether one thing might be expected to give rise to another is really an aspect that is related to causation - how likely is an arrest, for example, to give rise to particular conduct? This essentially involves questions of predictability and anticipation. I do not, with respect to the observations of Adams J on this aspect, see that as a separate or additional matter (the "something more") distinct and separate from the question of causation. Whether one matter can be said to be expected to give rise to or be the cause of another will often depend upon the intensity of the relationship between them or, as Adams J observed, whether there was a "close link" between them as indeed Belby J was persuaded existed in Robinett."
In DPP (Victoria) v Kaba & Anor (2014) 247 A Crim R 300; VSC 52, the Director sought an order quashing a Magistrate's ruling under s 138, Evidence Act excluding evidence of police in relation to eight offences allegedly committed by a defendant including offensive language and assaulting a police officer. The evidence established that the defendant was a passenger in a car stopped by police for a routine licence and vehicle check. He was asked his name and identification and said, "Fuck off". There were two further requests by police for his details and on each occasion the defendant was abusive towards police. He was then informed he had committed the offence of use offensive language. He was asked for his name and address which he did not provide. He was then placed under arrest for failing to state his name and address. At the time of his arrest it was alleged he had assaulted police.
The Magistrate found that police had no power to stop the vehicle under the Road Safety Act 1986 (Vic) and without common law statutory power the actions of the officers in repeatedly asking the defendant for identification breached his right to privacy and the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Magistrate exercised his discretion to exclude the evidence under s 138, Evidence Act.
Bell J held that the Magistrate was in error in circumstances where the Road Safety Act did confer, by necessary implication, a power on police of routine or random stop and request in respect of drivers for the purpose of the administration of the Act. Therefore, there was no unlawfulness in relation to the stopping of the vehicle. However, Bell J further held that the Magistrate correctly decided that the police questioning was improper and unlawful because it was open to the Magistrate to find that it was coercive and that such questioning was incompatible with the defendant's human right to privacy pursuant to the Victorian Charter and rendered it unlawful.
Bell J, relevantly to the current application, held that there was no error in the Magistrate's interpretation and application of the causation test under s 138(1)(b), Evidence Act, in circumstances where the Magistrate was entitled to find that the lawful arrest of the defendant did not sever the connection between the police conduct and the offending, and to conclude that the offending conduct was not so disproportionate to the police conduct so as to break the chain of causation.
Finally, Bell J held that evidence can be obtained by police in consequence of their improper or unlawful conduct without them intending by that conduct to produce the offending.
Bell J considered DPP v Carr, DPP v Coe and DPP v AM. He made the following observations at [345] to [346]: "In Director of Public Prosecutions v Coe Adams J disagreed with Robinett and Carr. His Honour held that, under s 138(1)(b), evidence of offending would not be regarded as being 'in consequence of' improper or unlawful conduct 'unless something more is shown than the mere causal link'. He stated that the 'something more' would 'almost invariably' be that 'the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of the offences'. The analysis earlier in the judgment suggests that his Honour had something like the circumstances in Ridgeway in mind. With respect, I would not disagree with the outcome in Coe that the evidence was admitted. It was evidence of very serious assaults upon police that was out of all proportion to the alleged misconduct. However, because the concepts of obtaining and causation in s 138(1)(b) are objective and do not incorporate any element of intention or purpose, I would not accept the reasoning of Adams J on that subject. In that connection, I would generally accept the analysis of Hall J in Director of Public Prosecution (NSW) v AM according to which the cases of Robinett and Carr are examples of obtaining of evidence of offending that occurred in consequence of (unintended) impropriety or contravening conduct within s 138(1)(b)."
It is clear from those authorities that whether one matter can be said to be expected or give rise to, or be the cause of another will often depend upon the intensity of the relationship between them or as Adams J observed, whether there was a "close link" between them.

Submissions of the parties in relation to whether the evidence was obtained in consequence of a contravention of an Australian law

Ms Hennessy submitted on behalf of the accused that at the time Constable Kozaruk enters the unit to arrest the accused he was intending to arrest him for firstly, assaulting police (when he first entered the unit) and secondly, for the offence of armed with intent. It was submitted the first alleged offence is directly related to the unlawful entry of police upon arrival at the unit, and that the second alleged offence is also a consequence of the initial unlawful entry.
With respect to the question of proportionality between the impugned conduct and the alleged offending, it was submitted on behalf of the accused that in circumstances where the Crown case is that the accused kicked Leading Senior Constable Marks causing her injury, at the time when the accused was being restrained by Leading Senior Constable Marks and Constable Kozaruk, that such conduct is not disproportionate to the conduct of police in unlawfully entering the unit.
The Crown submitted, inter alia, that notwithstanding the causal link between the unlawful arrest of Ms Rivers-Lloyd and the aggression shown by the accused, the level of violence displayed in producing a knife, yelling obscenities, punching, kicking and spitting, and ultimately causing grievous bodily harm to Leading Senior Constable Marks, is not in any way proportionate to the action of police.
In such circumstances the Crown submitted the Court would not find the accused's actions were obtained in consequence of the contravention of any Australian law.

Consideration

Having considered the available evidence, it is wholly apparent that what is operating on the accused's mind throughout the incident with police is that the police have unlawfully forced entry into the unit. The body worn video records the accused saying the following, inter alia, "You're not forcing your way in here". After police tell the accused, "You don't get a choice we're coming in". He replies, "No you're not". There is then a forceful wrestle between the accused and police before Ms Rivers-Lloyd leaves the unit and the door is closed.
Again, during the wrestle with police on the first entry of the unit the accused says, "I'm not doing anything fucking wrong cunt" and then "I'm in my own fucking house". In circumstances where I am satisfied that the first entry was unlawful, it follows that the police were trespassing when they entered the unit on the first occasion and that any force applied to the accused was an assault. When the accused comes out of the house after allegedly being seen holding a knife , he says to police, "I've got my fucking phone in my hand, you fucking idiots, fuck off you just came and attacked me and then you fucking forced your way in. Just because you want to ask her a fucking question".
Whilst the police are trying to calm down the accused at the unit door, the accused says, "Why did you fucking force your way in, you fucking stupid slut?" and further, "How do you have the right to push your way in?" Further, "You can't barge your way into my house and start beating the fuck out of me in the morning", and again, "You need to fucking get the fuck out of my house". Finally, "You can't just fucking force your way in and bash me".
I am satisfied it is wholly apparent from that evidence that the accused's conduct towards police during his arrest is directly responsive to the perceived unlawful entry and also the unlawful arrest of Ms Rivers-Lloyd. I am satisfied that all the events are "closely related and interconnected", relying on the comments of Smart AJ in DPP v Carr at [68], adopting the analysis of Hall J in DPP v AM at [83]. I am satisfied that the conduct of the accused towards police is precisely what might have been anticipated after a person had been subjected to an unlawful forced entry and the unlawful arrest of his partner. I am not satisfied that the lawful arrest of the accused after Constable Kozaruk believed he saw the accused with a knife severs the connection between the earlier unlawful conduct of police and the offending (see DPP v Carr).
On the contrary, I am satisfied the unlawful police conduct remains causally connected to the subsequent alleged offending having regard to the continuous comments by the accused demonstrating that his behaviour was directly linked to him feeling aggrieved because of the unlawful entry and the unlawful arrest of Ms Rivers-Lloyd.
Further, I am not satisfied that the alleged conduct of the accused is so disproportionate so that the chain of causation is not established, having regard to the following (see Smart AJ in DPP v Carr at [68]): 1. I am not satisfied on the balance of probabilities that the accused had a knife when Leading Senior Constable Marks opened the door to the unit in circumstances where a knife is not seen by Leading Senior Constable Marks or by Ms Rivers-Lloyd and the accused denies that he had a knife in the body worn video. Also, the body worn video is of insufficient clarity to form any concluded view about whether the accused is holding anything in his hand. 2. The conduct of the accused at the time that the injury was occasioned to Leading Senior Constable Marks can be characterised as physically resisting police, such conduct including kicking.
By those remarks I am not seeking to suggest that the injury occasioned to Leading Senior Constable Marks was not serious. Rather, I am seeking to contrast the circumstances in which it was occasioned with more serious examples of violence used against police.
For those reasons, I am satisfied that the evidence of the subsequent alleged offences of the accused was obtained in consequence of the contraventions of Australian law.

Does the desirability of admitting the evidence outweigh the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained?

The onus is on the Crown to establish the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In R v Grech; R v Kadir [2017] NSWCCA 288, the Court (Ward JA, Price J and Beech‑Jones J) outline the task mandated by s 138(1), Evidence Act in the following way at [122]: "The concluding words of s 138(1) require a Court to undertake a weighing process that compares the "desirability" of admitting the evidence with the "undesirability" of admitting that evidence "that has been obtained in the way that the evidence has been obtained". The section does not explicitly state why the admission of such evidence may be undesirable. However, the provision enacts, with some modification, the discretion to exclude illegally obtained evidence discussed in Bunning v Cross (1978) 141 CLR 54 (Parker v Comptroller-General of Customs [2009] HCA 7 at [27] per French CJ; Parker v Comptroller-General of Customs [2007] NSWCA 348 at [58]-[62]). Thus, the provision is directed to weighing "two competing considerations of public policy" being 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" (Bunning v Cross at [74] per Stephen and Aickin JJ). In Gedeon at [177] Bathurst CJ stated that the exercise of the power conferred by s 138(1) "depends on considerations of 'high public policy' relating to the question of whether the effect of the illegality or impropriety on the administration of justice outweighs the legitimate public interest in the conviction of the guilty"."
Section 138(3), Evidence Act outlines matters that the Court may take into account under s 138(1) in determining the balancing exercise.

a) and b) The probative value of the evidence and the importance of the evidence in the proceedings

I accept the evidence is of significant probative value and of importance in circumstances where the evidence sought to be excluded comprises all of the evidence relied upon by the Crown to establish the Crown case.

c) The nature of the relevant offence and the nature of the subject matter of the proceeding

The offence is an alleged criminal offence that is serious in circumstances where there is a public interest in prosecuting and punishing assaults against police.

d) The gravity of the impropriety or contravention

I regard the contraventions as being of significant gravity in circumstances where it involved firstly, an unlawful entry into the accused's unit, a trespass and also led to violence being inflicted upon the accused upon entry and an assault and an unlawful arrest of his partner.
In order to fully appreciate the gravity of the unlawful conduct it is necessary to view the body worn video. What is shown is a chaotic and distressing scene involving all members of the accused's family. There is a greater public interest in deterring contraventions that are of some gravity than in deterring minor technical breaches.
In relation to the unlawful entry (as a result of not providing the reason for the entry), I note the observations in Lippl v Haines (1989) 18 NSWLR 620 at [633] to [634] as follows: "An unexpected intrusion of a man's property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance".

e) Whether the impropriety or contravention was deliberate or reckless

Having regard to the evidence of Leading Senior Constable Marks and Constable Kozaruk I am satisfied that the unlawful entry and unlawful arrest of Ms Rivers-Lloyd was not deliberate or reckless. I accept that each officer acted under the mistaken belief that they could enter and also could arrest Ms Rivers-Lloyd without any intention to charge her at that early state and then secondly, they could enter to effect that arrest. However, neither officer in my view gave a satisfactory explanation for the failure to provide the accused with a reason for the forced entry into the unit (s 202, LEPRA).
Each officer was aware of the need to comply with s 202, LEPRA. Constable Kozaruk said he did not want to tell the accused he was at the unit to arrest Ms Rivers-Lloyd because he did not want to cause trouble between Ms Rivers-Lloyd and the accused. He understood he still had an obligation to comply with s 202, LEPRA. Leading Senior Constable Marks also suggested she had a concern telling the accused about the allegations because they involved another male. It was suggested to Leading Senior Constable Marks in cross-examination that she did not need to go into the full allegations in order to comply with s 202, LEPRA. She said, "I don't know" (T 64.2 20/4/21).
Whilst I consider neither officer has satisfactorily explained why the accused was not given a reason for the entry, I cannot be satisfied that such conduct was reckless as that term is understood in R v Helmhout (2001) 125 A Crim R 257; NSWCCA 372 at [33].

f) Whether the contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights

The contraventions of law were contrary to the following articles in the International Covenant on Civil and Political Rights.

Article 9 "1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him".

Article 17 "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks."

I am satisfied that there has been a breach of a high order of the accused's fundamental human rights especially with respect to his privacy.

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

There is no evidence that any other proceedings are likely to be taken in relation to the contraventions.

h) The difficulty (if any) of obtaining evidence without impropriety or contravention of an Australian law

Without the contravention the relevant evidence would not have been obtained.
Having considered all of those matters I am not satisfied that the Crown has established that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained. Of particular importance in forming that view was the fact that the way in which the evidence was obtained was as a consequence of breaches of fundamental human rights, pursuant to the International Covenant on Civil and Political Rights, that resulted in very serious consequences for the accused.
The unlawful exercise of powers by police undermines public confidence in the rule of law. This is because citizens can do little to defend themselves from the exercise of such powers. This is an important public policy consideration which, given the gravity of the contraventions in the present matter, weighs in favour of the exercise of the discretion to exclude the evidence.
Accordingly, pursuant to s 138(1)(b), Evidence Act the evidence of Leading Senior Constable Marks and Constable Kozaruk is not admissible in the trial. Ms Hennessy on behalf of the accused has made an application for a verdict by direction in circumstances where the exclusion of the evidence results in there being no evidence to establish Count 1 and Count 2 on the indictment. During submissions the Crown conceded that a verdict by direction is appropriate should the evidence be excluded pursuant to s 138(1)(b), Evidence Act.
Accordingly, I direct a verdict of not guilty in relation to Count 1 and I direct a verdict of not guilty in relation to Count 2.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2021

Charter of Human Rights and Responsibilities Act 2006(Vic)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (38 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (14)