Solicitors:
O'Brien Criminal and Civil Solicitors (Plaintiff)
NSW Police Force (First Defendant)
Office of the Crown Solicitor for NSW (Second Defendant)
File Number(s): 2019/140767
Decision under appeal Court or tribunal: Local Court
Date of Decision: 8 April 2019
Before: George LCM
File Number(s): 2018/318128
[2]
Judgment
HIS HONOUR: The plaintiff, David Roberts, by summons filed on 6 May 2019, seeks orders pursuant to s 55(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) ("CARA"), to set aside his conviction in the Local Court at Gosford on 8 April 2019 of resisting or hindering police contrary to s 546C of the Crimes Act 1900 (NSW) and failing to comply with a direction, contrary to s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"), and to have the matter remitted to the Local Court to be dealt with according to law. Alternatively, he seeks an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW), quashing the decision and remitting the matter to the Local Court to be dealt with according to law. The defendants are the informant, Senior Constable Hayley Marks ("the first defendant") and the Local Court of New South Wales ("the second defendant").
The orders sought by the plaintiff in his summons are as follows:
"1 Pursuant to s 52 of the Crimes (Appeal and Review) Act 2001, an order setting aside the conviction of the Plaintiff by the Second Defendant on 8 April 2019.
2 Pursuant to s 52 of the Crimes (Appeal and Review) Act 2001, an order remitting the matter to the Local Court to be dealt with according to law.
3 Alternatively, an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 quashing the decision of the Second Defendant and a consequential order remitting the matter to the Local Court to be dealt with according to law;
4 Such further relief as the Court considers appropriate; and
5 Costs."
The plaintiff and first defendant have agreed a resolution of the proceedings on the basis that the Court makes orders remitting the matters as sought pursuant to s 55(1)(b) of the CARA, that the two charges be remitted to the Local Court at Gosford to be dealt with according to law by a different magistrate, that no order is made as to costs between the plaintiff and first defendant and that the second defendant pay the plaintiff's costs.
As the proceedings involve a statutory appeal in criminal proceedings, the Court is obliged to be satisfied that there is an error such as to require remittal of the matter and, if so, to give reasons explaining why the orders sought by the plaintiff will be made, albeit in a shorter form: see Director of Public Prosecutions (NSW) v Merhi [2019] NSWSC 1068 at [3]-[4].
The evidence heard in the Local Court as to the circumstances surrounding the alleged offences may be relevantly summarised as follows.
On 8 October 2018 at Woy Woy, at about 4pm, Ms Nadia Gray crashed her motor vehicle into a fence in the car park of the Woy Woy Bottle Shop. She gave evidence that the plaintiff approached her and said, "I'm going to call the police", "You shouldn't be driving" and "You should be off the road". Senior Constables Duck and Marks attended the scene. Senior Constable Duck gave evidence that he spoke to the plaintiff and concluded that he was offering opinions rather than an eyewitness account. He formed the view that the plaintiff was affected by alcohol and told him "to go away", saying "Mate, you're basically hindering me in my investigation". He gave his name, rank and station and said, "I'm giving you an official move on direction … If you fail to comply with this direction you may be committing an offence". The plaintiff moved away, but returned 20 minutes later, again wanting to talk to Senior Constable Duck. He was warned:
"I've told you before. My name is Senior Constable Duck from Gosford Police. I'm giving you an official move along direction. You're harassing me. You're harassing this driver. If you don't - if you fail to comply with this direction you'll be committing an offence. I'm telling you now, just leave. Just leave."
Senior Constable Duck said that the plaintiff said, "I've got to get my bike", but did not leave, so he arrested him, taking hold of the plaintiff's arm. The plaintiff started to pull away, so Senior Constable Duck put him in a hold that had the effect of causing him to hit his head on the ground. The plaintiff was bleeding from his face, so an ambulance was called. The plaintiff declined to go to hospital and Senior Constable Duck said to him, "If you're refusing to go [to] a hospital, I now am giving you another direction to leave". He then discontinued the arrest and the plaintiff left.
In cross-examination, Senior Constable Duck said his intention in arresting the plaintiff was "to take him back to the police station, identify him, discontinue the arrest and send him out a future Court attendance notice".
Senior Constable Marks gave brief evidence corroborating that of Senior Constable Duck, which completed the prosecution evidence.
At the outset of the hearing, the prosecutor and counsel for the defence had informed the magistrate that the "issue is going to be around the lawfulness of the arrest". By agreement, the evidence in the prosecution case was led as evidence on the voir dire. Following the completion of the prosecution evidence, counsel for the defence submitted that there was no prima facie case in relation to the charges, because the arrest was unlawful pursuant to s 99(3) of the LEPRA.
Sections 99 and 105 of the LEPRA are in the following terms:
"99 Power of police officers to arrest without warrant
(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 be 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.
Note. The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer - see section 105.
(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.
(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.
(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
…
105 Arrest may be discontinued
(1) A police officer may discontinue an arrest at any time.
(2) Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances:
(a) if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason,
(b) if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997.
(3) A police officer may discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law."
The plaintiff's counsel submitted to the learned magistrate that on Senior Constable Duck's evidence, at the time he purported to arrest the plaintiff, he did not intend to charge him and take him before a justice or bail officer to be dealt with according to law, contrary to s 99(3) of the LEPRA. Section 99 of the LEPRA and the legitimate purpose of the power of arrest was considered in Robinson v State of New South Wales [2018] NSWCA 231, with the majority (Basten and McColl JJA, Emmett AJA dissenting) determining that it was to be deployed for the purpose of bringing the suspect before a justice. Basten JA said, at [136]:
"The conclusion reached below is that in legal terminology 'arrest' is generally used to identify that deprivation of liberty which is a precursor to the commencement of criminal proceedings against the person arrested, and which may be justified as necessary for the enforcement of the criminal law. There is no indication in the Law Enforcement Act that it is used in any other sense. Accordingly, an arrest without warrant in exercise of the power conferred by s 99(1) of the Law Enforcement Act is not a valid arrest unless carried out for that purpose."
See also the remarks of Basten JA at [154] and McColl JA at [46] and [93]-[94].
The magistrate appeared to either not understand or ignore the submission, responding by reference to Senior Constable Duck's evidence:
"I am sorry, his evidence was that he intended to discontinue the arrest when he got your client back to the police station at which time he was going to be dealt with by Court attendance notice. That was the evidence he gave, that is perfectly normal procedure."
The plaintiff's counsel offered to hand up a copy of Robinson v State of New South Wales, but the offer was declined, the magistrate observing, "I am not interested for the reason that there is nothing unlawful about what has occurred here on the evidence". Later, the magistrate said, "There is nothing unlawful about the way in which your client has been treated".
The magistrate concluded:
"… as far as I am concerned, the prosecution has proven on the evidence that it has, that there has been both a hindering and a resisting of this police officer who is acting in the course of his duty."
It may be that the magistrate did not intend what he said; he had earlier indicated that he would be entitled to rely on the evidence of the senior constables "at the prima facie level". The Court's function in determining whether there is a prima facie case is only to determine whether there is sufficient evidence of each of the elements of the offences capable of proving them beyond reasonable doubt; it is not to consider whether the offences are proven: see Regina v XHR [2012] NSWCCA 247 per Beazley JA (Hall and S G Campbell JJ agreeing), at [11]-[18]. However, it is clear that the learned magistrate did not consider or respond to the submission put to him on the lawfulness of the plaintiff's arrest.
Immediately following the magistrate's rejection of the no case submission, the case for the defendant was presented, which was exclusively the evidence of the plaintiff. He said that when he first approached Senior Constable Duck, he was told, "I don't need your opinion, mate. I've done hundreds of these … You're not helping me", so he left. The second time he approached Senior Constable Duck, the Constable seemed agitated and said, "I don't want your opinion" and, as the plaintiff recalled hearing it, "You're trespass [sic] for 24 hours or you'll be arrested". The plaintiff said he "got a bit of a shock" and said, "I've got to go and get my bike", but before he could do so, the constable grabbed him by his arm and:
"… waltzed me … very fast, over to the back of the police truck and I said, 'I'm just getting my bike' and he said, like, 'You had your chance', or something. He spears me down flat out like that and I hit that concrete that hard …"
According to the transcript, following the plaintiff's evidence, "Prosecutor and counsel addressed". It is not disputed that in fact the prosecution did not address the learned magistrate. Counsel for the plaintiff addressed the magistrate, who immediately gave his judgment, which was, to say the least, succinct, comprising in its entirety a paragraph of the transcript, as follows:
"In my view both offences are proven to the criminal standard and I am told that your client has no prior convictions of any kind, so it is rather disappointing that we have had this grotesque waste of public money in terms of Court time spent on a case which, as I indicated earlier on, is a classic example of a mountain being made out of a molehill. When [he] fell to the ground, that was extremely unfortunate. His refusal to accept the sensible recommendation that he go to hospital to be examined is, I think, indicative of the level of his intoxication at the time which is an explanation for most of what has occurred.
In all the circumstances both offences are proven."
In Director of Public Prosecutions (NSW) v Merhi, Johnson J said, at [31]:
"The Magistrate in this case had effectively been sitting as the trial Judge in a summary hearing of a criminal charge. It was the obligation of the Magistrate to give reasons in discharge of the judicial function which was being exercised. The Court has emphasised the obligation upon a Magistrate to give reasons for a decision in criminal proceedings in discharge of the Magistrate's judicial duties, whilst keeping in mind the practical reality of delivery of ex tempore reasons in a busy Court: Director of Public Prosecutions (NSW) v Wililo (2012) 222 A Crim R 106 at 122-123; [2012] NSWSC 713 at [56]-[57]."
These observations are as appropriate to the learned magistrate's function on determining the "no prima facie case" submission at the close of the evidence for the prosecution, as they are to his final determination. It is apparent from the terms of that determination that he was feeling the pressures of a busy Court. The plaintiff was nevertheless entitled to have the criminal case against him heard and determined according to law.
[3]
Conclusion
I am satisfied that it is appropriate to remit the matter to the Local Court to be dealt with by a different magistrate according to law.
Accordingly, I make the following orders:
(1) Pursuant to s 55(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the convictions of the plaintiff on 8 April 2019 at the Local Court at Gosford for offences under s 546C of the Crimes Act 1900 (NSW) and s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) are set aside and the proceedings the subject of this appeal are remitted to the Local Court at Gosford to be dealt with according to law by a magistrate other than Magistrate George.
(2) No order as to costs as between the plaintiff and the first defendant.
(3) The second defendant pay the plaintiff's costs in the amount of $11,000.
[4]
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Decision last updated: 29 October 2019