R v William John Bennett

The Appeal

1. The appeal was heard on 22 January 2015. The appeal was by way of a rehearing based on the transcript of evidence before the learned Magistrate. In determining the appeal I am to apply the principles governing appeals from a Judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court - see Charara v R [2006] NSWCCA 244 per Mason P at [18]. I have also had regard to the exhibits tendered in the Local Court and I have read the remarks of the learned Magistrate in her judgment dated 31 July 2014.
2. I am mindful of the limitations that therefore exist in proceeding wholly on the record of the proceedings in the Local Court and the advantages held by the learned Magistrate in considering the evidence, particularly in respect of the issue of credibility in respect of any witness.

The Evidence

1. The Crown case comprised the evidence of three police officers, Constables Pollock, Higgins and Ferner. On Friday 28 January 2014 at approximately 7.50pm the three uniformed officers were in a fully marked police vehicle driving west on Glebe Point Road at Glebe when they observed the appellant on the side of the road. Constable Pollock was driving the vehicle, Constable Ferner was in the front passenger seat and Constable Higgins in the rear seat.
2. Constable Pollock gave evidence that he observed the appellant on the northern footpath of Glebe Point Road at the intersection of St Johns Road as the police vehicle proceeded through that intersection. He observed the appellant to stop, "puffed his chest out and raised both his fists towards the police vehicle". He gave the following evidence: "Q: What occurred from there? A: I turned the police vehicle around to go and look for the male. I didn't know if he was intoxicated or mentally ill or whatever. I just wanted to have a chat to him about his behaviour, turn the police vehicle around. I then sighted the male on Glebe Point Road, crossing to Mitchell Street in Glebe. Q: What occurred? From the moment you turned, can you describe your actions to the Court? A: I just pulled up to the - I stopped the police vehicle on the sidewalk, on the side of the road. I jumped out of the truck and I said, 'Mate, why did you raise your fists up at us?' He turned around and said-- Q: Just at that point, where were you in relation to him distance wise, position-wise? A: I was five metres away from him. I was walking towards him and he was walking away from us. Q: What occurred from there? A: He said 'Fuck off. You're not the police.' I said 'Mate, stop there'."
3. The appellant contends that by saying to the appellant the words, "Mate, why did you raise your fists up at us?", Constable Pollock was effecting a common law arrest of the appellant. Alternatively, the appellant submits that by saying the words "Mate, stop there", he was effecting an arrest. As the arrest was for an offence of offensive behaviour, comprising the conduct of raising his fists towards the police vehicle and puffing his chest out, that arrest was unlawful and therefore any evidence obtained thereafter was improperly obtained and should have been excluded by the learned Magistrate pursuant to s 138 of the Evidence Act 2005. That application was made before the learned Magistrate who proceeded to hear the evidence of all three police Constables thereafter on the Voir Dire. The learned Magistrate then refused the application pursuant to s 138 of the Evidence Act, dismissed the charge for offensive behaviour for the conduct outlined above, and proceeded to convict the appellant of the charge pursuant to s 58 of the Crimes Act.
4. The evidence of Constable Pollock in relation to the assault was as follows: "Q: I take you to your evidence in which you stated that you said, 'Mate, stop there'. What occurred after that? A: What occurred after that was William Bennett was crossing the road on a southerly direction. Q: When you say 'crossing the road', where was he in relation to you? A: He was about five metres in front of me and there was Mitchell Street to the left and the right and we were on Glebe Point Road. Q: What happened after that? A: After that William started to jog slowly across the road. I caught up to him. Q: When you say you caught up to him, what were you doing? A: I was running after him. Q: Why were you running after him? A: I thought he was going to get hit by the traffic due to the conditions, the time of the night. Q: When you say 'conditions', what condition were they? A: It started to rain, so the roads were slippery. Q: What were the traffic conditions like at the time? A: Medium traffic, Friday night. Q: So you began to follow him? A: That's correct. Q: What happened after that? A: After that I caught up to him. I placed my right hand on his shoulder. Q: When you got up to him, how far had you gone? A: We were in the - in the middle lane, so not in the middle of the road, in the middle of the first lane. Q: How far from the footpath, which you were on, were you distance wise? A: Probably about two-and-a-half metres. Q: What happened from there? A: What happened from there? I placed my right hand on his shoulder and tried to pull him off the road. Q: Why did you do that? A: I thought he was going to get hit by traffic. Q: What happened after that? A: After that William turned around, raised his right fist."
5. The learned Magistrate then intervened to ask the officer to call Mr Bennett by his last name. The transcript proceeded: "A: Mr Bennett turned around, cocked his right fist to about 90 degrees and it was raised about head height to me. Q: Was that 90 degrees towards you? A: His elbow was at 90 degrees and his fist was raised about head height. Q: What happened after that? A: What happened after that? I put my left arm up to try to block an oncoming punch. Q: So you've raised your left arm? A: And then I've ducked my, my cheek into my right shoulder to stop any force of a punch. Q: What happened from there? A: What happened after that? I then conducted a police approved leg sweep, just by kicking Mr Bennett's legs out from underneath him. Q: And from there? A: William fell on - sorry, Mr Bennett fell onto his back and I said 'My name is Constable Pollock from Glebe Police Station, you're under arrest for assault police. You don't say or do anything if you don't want to'. He then told me to 'fuck off'. I said 'I will record what you say or do. I can use that recording in court'.
6. In cross-examination Constable Pollock gave evidence that he found the actions of the appellant by puffing out his chest and raising his fists towards the police vehicle offensive. However, when asked whether he approached the appellant with the intention of arresting him, he denied that and said that he wanted to talk to him. He was then asked whether the appellant was free to leave at any time and his answer was "Not just yet". His explanation was "Well, I could issue a move on or some other course of action". He agreed that he had stopped the appellant for the purpose of investigating what occurred. He agreed that he stopped him because he had committed an offence, that offence being "offensive behaviour".
7. In re-examination Constable Pollock said that he said the words "Mate, stop there" to make sure he was okay and not mentally ill and not intoxicated. He was asked whether he placed Mr Bennett under arrest and said "Not at that point". He said he placed the appellant under arrest after he tried to punch him.
8. Constable Higgins was in the rear of the vehicle. When asked what happened he gave the following evidence: "A: As we were driving, I looked out the window and I saw Will Bennett walking down the street. I saw he puffed his chest out and he raised his fists and in a sort of fighting stance and sort of motioning to fight and then we continued driving. Constable Pollock turned his vehicle around. We got to about Glebe Point Road and Mitchell Street intersection where we saw William Bennett again. Constable Pollock got out. Will Bennett kept walking. So I got out as well. Constable Pollock was closer to Bennett and he said something like 'Why did you raise your fists at us', and I believe Will Bennett said something like 'Fuck off. You aren't real police'. He kept walking. At this point he started heading towards-- He then kept walking towards traffic and Constable Pollock said something like, 'Stop, you're going to get hit', and he kept walking. He was sort of walk/run. Constable Pollock went to grab him to stop him going into traffic. Will Bennett, he turned around-- Q: 'Stop. You're going to get hit', and then what happened? A: He kept walking. Constable Pollock put his hand on the shoulder of Will Bennett. Will Bennett turned around. He had his fists raised and they were both closed. I believe he was going to punch Constable Pollock. It looked as though - it was very quick. It looked as though he turned around to take a swing. Constable Pollock immediately raised his left hand and tried to duck out of the way, and whilst doing that, he performed a leg sweep on Will Bennett. Once Will was on the ground, Constable Pollock said 'I'm Constable Pollock from Glebe Police. You're under arrest for assault police. You don't have to do, say or do anything if you don't want to. Anything you say or do I will record. Do you understand that?' I think Will said 'Fuck off'. Constable Pollock said 'Anything we record we can use as evidence in Court. Do you understand that?', and Will said, 'Yeah'."
9. Constable Ferner was in the front passenger seat. When asked what happened he said: "A: We were driving along. I saw the accused, who I know. Just mentioned it to my offsider. Just kept driving. Didn't really think any more of it. Then my offsider said 'He's acting like he wants to fight', so I said, 'Well, go back and have a chat to him'."
10. Constable Ferner gave evidence corroborating that Constable Pollock got out of the police vehicle and said words to the effect of "William, we need to talk", the appellant walked towards the middle of Glebe Point Road. He gave this evidence: "Q: When you were walking into Glebe Point Road, how far was he onto the road? A: A few metres. He would have struck by a vehicle if one had been driving on the road. He didn't look. He just walked straight - didn't run, but he walked very quickly out into the middle of the road. Q: Into the road and from that point on can you describe Constable Pollock's movements and Mr Bennett's movements from what you can see? A: Constable Pollock put his arm out towards Mr Bennett's shoulder area. The accused had immediately swung around and swung a punch at Constable Pollock's head. Constable Pollock has conducted a leg sweep, taken the accused to the ground. Constable Higgins has come over about a second later. They've lifted the accused up off the ground and walked him over. The accused was quite agitated. At this point he was off the road still swearing a lot, very aggressive. I put him in handcuffs, got him to sit down for a moment, yeah."

The Appellant's Submissions

1. As outlined in [10] above, the appellant submitted that an arrest had been effected at common law when Constable Pollock first spoke the words, "Mate, why did you raise your fists up at us?", or alternatively, when he thereafter said the words "Mate, stop there". The appellant submitted that an arrest was effected because there was a deprivation of liberty at that point in time and Constable Pollock had given evidence that the appellant was not free to leave.
2. It was submitted that if, on the other hand, Constable Pollock's evidence that he "wanted to have a chat" with the appellant was accepted, then depriving the appellant of his liberty for that purpose, or for the purpose of investigating whether an offence had taken place, was unlawful. In any event, it was submitted that it was a requirement of any common law arrest that the arresting officer must advise the purpose of such an arrest. As that did not take place, the arrest was also therefore unlawful.
3. Constable Pollock's evidence that he was concerned to find out whether the appellant was either mentally unwell or intoxicated had been rejected by the learned Magistrate. In any event, the appellant relied on the decision of the New South Wales Court of Appeal in NSW v Riley [2003] NSWCA 208 where Sheller JA (with whom Nicholas J agreed) said at [25]: "25 … I can imagine no reason why the common law would allow a police officer so to apprehend a person without a warrant and without telling that person the reason for that person's apprehension any more that if that person was not mentally disturbed and the member of the police force had reasonable grounds for believing that the person had committed an offence. Why would the police officer be excused from making known the reason for the arrest when a person appears to be mentally disturbed? It seems to me, with due respect, every bit as important that a person who, for example, is to be taken from where they live to a hospital and kept there be told at the earliest possible moment of time why that is being done. As was pointed out in the House of Lords it is at the time of arrest that that person should have the opportunity to explain that there has been a misunderstanding or to call to attention to other matters which would show that the facts properly understood would not permit his or her being taken to or detained in a hospital …"
4. Further, it was submitted by the appellant that arrest is a measure of last resort, particularly with respect to summary offences such as "offensive conduct", relying on DPP v Mathews-Hunt [2014] NSWSC 843 at [59]. It was submitted that at this point of first contact with the appellant, the evidence established that the appellant was being constructively deprived of his liberty, and that the Court should reject the evidence of Constable Pollock in re-examination that he was free to go at that time. That evidence was contradicted by his earlier evidence that he was not free to go at all at that time. As the arrest at that time was clearly unlawful, all evidence thereafter should be rejected pursuant to s 138 (1)(b), having regard to the matters set out in s 138 (3) of the Evidence Act.
5. It was submitted that subsequent conduct of the appellant, after Constable Pollock had chased him onto the roadway and placed his hand on his shoulder, was conduct that when objectively considered was the anticipated or expected outcome of the unlawful arrest that preceded it and therefore the evidence in relation to that conduct was obtained for the purposes of s 138. In proceeding onto the roadway the appellant was merely trying to extract himself from the situation. The evidence of what happened on the roadway should therefore have been rejected - see DPP v AM [2006] NSWSC 348.
6. It was further submitted that this case could be distinguished from DPP v Gribble [2004] NSWSC 926. In that case the defendant was observed by police officers to be standing in the middle of a city street at night. The police directed him to move off the road but he refused. He then resisted their efforts to remove him to the safety of the footpath, and once there, he assaulted one of the police officers and was charged with resisting a police officer in the execution of their duty and two counts of assaulting police in the execution of their duty. Barr J held that those circumstances gave rise to a duty on the part of the officers to do what they reasonably could to remove the defendant from the danger to which his action was giving rise. His refusal was irrational and he was otherwise behaving inappropriately. Therefore, by removing him from the road the officers were acting in the course of their duty to protect the defendant and others from the dangers which he was presenting (see [29]).
7. It was submitted that that situation did not arise here where the evidence established merely that the appellant was crossing the road to the other side and there was no traffic. It was submitted therefore that the acts of Constable Pollock were not reasonably necessary for the protection of the appellant from self-injury, relying on DPP v Araura [2012] NSWSC 1120 at [30].
8. It was therefore submitted that the action of Constable Pollock of placing his hand on the shoulder of the appellant when he was standing on Glebe Point Road was unlawful. The appellant relied on the following passage from the judgment of McHugh J in Coleman v Power (2004) 220 CLR 1 at [121]: "Although a charge of assaulting a police officer in the execution of his or her duty will fail when the officer has engaged in unlawful conduct such as an unlawful arrest, the accused may be convicted of common assault if his or her response is excessive. The author of a Comment on Nguyen refers to the availability of this course being open to the prosecution. The author referred to Kerr v Director of Public Prosecutions where the Queens Bench Division refused to uphold a conviction for assaulting a constable in the execution of his duty where the constable, believing his partner had already arrested a woman, took hold of her arm to detain her. The woman retaliated by punching the constable. Because no arrest had taken place, the officer's conduct was outside his duty. However, the Court referred to the possibility of an alternative charge of common assault …"
9. It was submitted therefore that the prosecution of an offence pursuant to s 58 must fail as Constable Pollock was not acting in the execution of his duty as a police officer. Further, it was submitted that the evidence did not establish that he felt threatened to the level required for an assault under that section. Whilst the evidence established that he ducked to avoid being struck, he was not asked whether he felt fear at that time and to draw such an inference would constitute an unsafe basis to convict the appellant of the offence.

The Crown Submissions

1. The Crown submitted that in respect of the first contact between Constable Pollock and the appellant, because the evidence of Constable Pollock was conflicting as to whether the appellant was free to leave at that time, accepting Constable Pollock's evidence that he "just wanted to talk to the appellant", there was no arrest at that time. In re-examination Constable Pollock confirmed that the appellant was free to leave and that he did not intend to arrest him at that time. As there was no arrest, there was no basis for the further evidence being excluded pursuant to s 138.
2. The Crown submitted that the eventual arrest by Constable Pollock of the appellant on Glebe Point Road was lawful pursuant to s 99 of LEPRA. At that time, Constable Pollock had formed a view that an offence had been committed, namely, an offence of offensive conduct and that he was satisfied that the arrest was reasonably necessary. The evidence established that it was a busy Friday night on Glebe Point Road, that there were members of the public, including women and children present, and that it was reasonably necessary to arrest the appellant for the protection of those members of the public.
3. The Crown submitted that in applying s 138 of the Evidence Act, there was a public interest in admitting the evidence pursuant to s 138(3)(d) so as to deter serious conduct. It was submitted that the probative value of the evidence clearly outweighed the prejudice to the appellant.
4. In apprehending the appellant on Glebe Point Road the Crown submitted that the evidence established that Constable Pollock was concerned that the appellant would be hit by traffic. That was corroborated by the evidence of both Constable Higgins and Constable Ferner, the latter having heard Constable Pollock say "Stop, you will get hit".
5. The Crown submitted that the evidence of the three officers established that an assault had taken place and that the elements of the offence pursuant to s 58 were made out, relying on DPP v Puskar (1992) 10 Petty SR 4521.

Determination

1. In R v Donohue (1988) 34 A Crim R 397, Hunt J said at p 401: "An arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person. Words may be sufficient; Alderson v Booth [1969] 2QB 216 at 220-221; but they are not always necessary - what must be done is what is reasonable in the circumstances - Timms v John Lewis & Co Limited [1951] 2KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36."
2. The test for whether a police officer has reasonable grounds to arrest a citizen and thereby deprive him of his personal liberty, is an objective one. At common law, a person being arrested must be informed of the reason for the arrest and failure to do so will render the arrest unlawful - Michaels v R (1995) 184 CLR 117.
3. 34 Here, there was no reasonable basis for Constable Pollock to arrest the appellant when he first spoke to him on Glebe Point Road on the basis that he believed that the conduct that he observed when he drove past the appellant constituted offensive conduct. Nor was he entitled to detain the appellant for the purpose of investigating whether an offence had taken place. The words he spoke to the appellant, namely, "Mate, stop there", clearly constituted an attempt to deprive the appellant of his liberty and therefore constituted an arrest. I accept the evidence given by Constable Pollock on a number of occasions that he believed at that time that the appellant was not free to leave. I do not accept his evidence in re‑examination that he was not under arrest at that time.
4. Further, following the appellant onto the roadway and placing his hand on his shoulder, was a further attempt to deprive him of his liberty and therefore constituted an arrest. The basis for that arrest, namely, for an offence of offensive conduct, could not objectively have been a reasonable basis for that arrest. In any event, as such an offence came under the Summary Offences Act, it was inappropriate for police to exercise powers of arrest in this way for such a minor offence. In DPP v Carr (2002) 127 A Crim R 151 at [35], Smart AJ said as follows: "This court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this court were heeded." Those words are entirely apposite to what occurred here. The police officers knew the identity of the appellant. If the conduct of the appellant had, on an objective basis, reasonably amounted to offensive conduct, he could have been issued with a court attendance notice in respect of it. As I have found above, there was no reasonable basis for an arrest on that basis and therefore the arrest constituted first by Constable Pollock saying the words "Mate, stop there", and secondly on placing his hand on the appellant's shoulder was unlawful.
5. Section 138 of the Evidence Act provides as follows: "138 Discretion to exclude improperly or illegally obtained evidence [Cth Act only]/Exclusion of improperly or illegally obtained evidence [NSW & Vic Acts only] (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) 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 proceedings (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."
6. The evidence of each of the three police witnesses as to what occurred on the roadway stem from Constable Pollock's unlawful arrest of the appellant, and was therefore evidence "obtained" for the purpose of s 138 - see DPP v AM, supra at [80(c)]. As stated by Hall J at [82], the alleged assault on Constable Pollock was an unintended consequential offence resulting from the unlawful arrest of the appellant and therefore, by definition, lacked a purposive element. There was clearly a close link between the unlawful arrest of the appellant and his subsequent conduct.
7. In considering whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, given the way in which the evidence was obtained, I have had regard to the matters set out in s 138(3). Clearly the evidence was of probative value, as without it, the prosecution could not prove the offence under s 58. However, it was clearly highly prejudicial to the appellant and regard must be had to the fact that the nature of the relevant offence was that of a summary offence of "offensive conduct", whereas the gravity of the impropriety in Constable Pollock's unlawful arrest was a gross deprivation of the appellant's rights which was deliberate.
8. I find therefore that the evidence of each of the three officers should have been ruled inadmissible pursuant to s 138(1) of the Evidence Act and without that evidence the prosecution could not establish the elements of the offence pursuant to s 58. It follows that I would uphold the appeal and set aside the convictions of the appellant on both offences.
9. If I am incorrect in that finding, I distinguish this case from DPP v Gribble, supra. Here, the appellant was crossing the road and the evidence does not establish that he was a danger to himself or others. Thus, the conduct of Constable Pollock in placing his hand on the appellant's shoulder was unlawful, and not in the execution of his duty as a police officer. I would there have allowed the appeal on that basis.

Orders

1. I make the following orders: (1) The Appeal is upheld. (2) The conviction of the appellant on 31 July 2014 at the Local Court of the offence of "assault officer in execution of duty" pursuant to s 58 of Crimes Act 1900 is set aside. (3) The conviction of the appellant of "failing to appear" pursuant to s 51(1) of the Bail Act 1978 is set aside.

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: 09 February 2015