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15
Supreme Court 25 January 2002

DPP v Carr

[2002] NSWSC 194

Also reported as (2002) 127 A Crim R 151
Public order & justice offences
NATURAL JUSTICE

Citation: DPP v Carr [2002] NSWSC 194
Court: Supreme Court of New South Wales (Common Law Division)
Date: 25 January 2002
Judge(s): Smart AJ

Background

A police constable in Wellington, NSW, arrested a man for offensive language after the man directed profanities at him during a street dispute involving thrown rocks. The maximum penalty for offensive language at the time was a fine of $660, placing it at the lowest end of the criminal scale. The constable was aware that he could have proceeded by summons or field court attendance notice (FCAN) rather than by arrest, and knew where the man lived.

Following the arrest, a physical struggle ensued. The man was subsequently charged with three further offences: resisting police, assaulting police, and intimidating police. Those charges arose directly from the conduct that occurred after and in response to the arrest.

At a Local Court hearing, the magistrate conducted a voir dire (a preliminary hearing to determine the admissibility of evidence) and found that the evidence supporting the three charges had been obtained as a consequence of an improper act, namely the arrest itself. The magistrate exercised his discretion under section 138 of the Evidence Act 1995 to exclude that evidence and dismissed the informations. The Director of Public Prosecutions brought the matter to the Supreme Court seeking to quash those orders.

  • Whether the constable's decision to arrest rather than use a summons or field court attendance notice constituted an "impropriety" for the purposes of section 138 of the Evidence Act 1995
  • Whether the magistrate correctly exercised his discretion under section 138 to exclude the evidence obtained in consequence of that impropriety
  • Whether the magistrate denied the prosecution natural justice by relying on materials he had independently researched, including a Law Society Journal article and statistical data, without giving the prosecution an opportunity to respond

Decision

On the arrest and impropriety finding: Smart AJ examined whether the constable was required to use a summons or FCAN for a minor offensive language charge rather than proceeding by arrest. The judgment engaged with the relevant statutory framework and case law governing when arrest is appropriate for minor offences. The court's analysis centred on whether the arrest was an improper act in the circumstances, given the constable's own evidence that a summons or FCAN was available and the man's identity and address were known.

On the section 138 discretion: Section 138 of the Evidence Act 1995 requires a court to exclude improperly obtained evidence unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way. The magistrate had found that this balance favoured exclusion. The Supreme Court scrutinised whether that discretionary exercise was attended by legal error, particularly in light of the natural justice issue identified below.

On natural justice: The magistrate had independently researched and relied upon a Law Society Journal article, statistical material, and his own experience when exercising his discretion under section 138. He did so without alerting the prosecution or giving it an opportunity to make submissions on that material. Smart AJ held this was a clear breach of section 144(4) of the Evidence Act 1995, which requires a judge who takes judicial notice of matters to give each party an opportunity to make submissions so as to avoid unfair prejudice. On this ground, the discretionary exercise was flawed and could not stand.

Outcome: The Supreme Court quashed the dismissal orders and remitted all three matters to the magistrate to be dealt with according to law. On the remitter, the magistrate will need to redetermine the impropriety question and, if taking into account matters said to be common knowledge, must first identify those matters and afford parties the opportunity to respond.

Orders Made

  • The orders of the magistrate dismissing the charges of assaulting police, resisting police, and intimidating police were quashed.
  • Each matter was remitted to the magistrate to be dealt with according to law and in conformity with the Supreme Court's reasons.
  • No order as to costs was made provisionally, with liberty to any party to arrange a listing within ten days to argue costs.

Key Takeaways

  • Under section 138 of the Evidence Act 1995, evidence obtained as a consequence of an improper arrest, even for a minor offence, may be excluded if the court finds the desirability of admission does not outweigh the undesirability of admitting improperly obtained evidence.
  • Where a police officer is aware that a summons or field court attendance notice is available for a minor charge and the accused's identity and address are known, proceeding by arrest may constitute an impropriety capable of triggering the section 138 discretion.
  • Section 144(4) of the Evidence Act 1995 expressly requires a judicial officer who proposes to take judicial notice of material, including articles, statistics, or personal experience, to give each party a sufficient opportunity to make submissions on that material before relying on it.
  • The Supreme Court confirmed that a magistrate's independent research and reliance on materials not put to the parties, without notice, constitutes a denial of natural justice and renders the resulting discretionary exercise legally flawed.
  • In quashing the dismissals, the court remitted the matters for rehearing, meaning the questions of impropriety and the section 138 discretion remained open for fresh determination with procedural fairness observed.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 138, 144
- Crimes Act 1900 (NSW)
- Justices Act 1902 (NSW), s 109(a)
- Justices (Amendment) Act 1993 (NSW)

Cases:
- Fleet v District Court & Ors [1999] NSWCA 363
- Daemar v Corporate Affairs Commission, NSWCA, unreported, 4 September 1990
- Ridgeway v The Queen (1994-1995) 184 CLR 19
- Lake v Dobson, NSWCA, 19 December 1980
- Customs & Excise Commissioners [1969] 1 WLR 1161
- Bunning v Cross (1978) 141 CLR 54
- R v Haddad & Treglia [2000] NSWCCA 351
- Robinett v Police [2000] SASC 405
- R v Coleman (1990) 19 NSWLR 467
- R v Stokes and Difford (1990) 51 A Crim R 25