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Supreme Court 10 October 2002

Wilson v DPP

[2002] NSWSC 935

Assault & violencePublic order & justice offences

Citation: Wilson v DPP [2002] NSWSC 935
Court: Supreme Court of New South Wales (Common Law Division)
Date: 10 October 2002
Judge(s): Cripps AJ

Background

The plaintiff was charged with offensive language, resisting police, and assaulting a police officer, all arising from an incident at Liverpool Railway Station on 29 March 2002. He pleaded guilty to the offensive language charge. The remaining charges under the Crimes Act 1900 proceeded to a hearing before Magistrate Hamilton at Liverpool Local Court.

At the hearing, the plaintiff's solicitor sought a voir dire (a preliminary hearing on admissibility) to challenge the evidence of the two arresting officers. The argument was that the officers had acted improperly by arresting the plaintiff when they could and should have issued a Field Court Attendance Notice (FCAN) instead. If the arrest was improper, the argument ran, then section 138 of the Evidence Act 1995 required the exclusion of evidence gathered as a result of that arrest, including evidence of the plaintiff's alleged resistance and assault.

The magistrate rejected the impropriety argument and indicated he would admit the evidence. He then adjourned the proceedings, apparently anticipating a Supreme Court challenge. The plaintiff applied to the Supreme Court for leave to appeal against that interlocutory ruling.

  • Whether the magistrate's evidentiary ruling was an "interlocutory order" within the meaning of section 104(4) of the Justices Act 1902, giving the Supreme Court jurisdiction to hear an appeal.
  • Whether, if jurisdiction existed, leave to appeal should be granted.
  • Whether the magistrate erred in law by finding that the arresting officers had not acted improperly, and therefore declining to exclude their evidence under section 138 of the Evidence Act 1995.
  • Whether the earlier decision in DPP v Carr [2002] NSWSC 194 mandated a finding of impropriety wherever police arrest rather than issue a FCAN.

Decision

Cripps AJ held that the magistrate's ruling was not an "interlocutory order" for the purposes of section 104(4) of the Justices Act 1902. The ruling was, in substance, a decision about admissibility in the course of a trial that remained on foot. The magistrate had also not closed off the possibility of revisiting that ruling during the trial itself. Accordingly, the Supreme Court lacked jurisdiction to entertain the appeal.

On the question of whether leave should have been granted even if jurisdiction existed, Cripps AJ held that it would not have been appropriate to intervene. The Supreme Court is generally reluctant to interrupt trials in progress, and strong reasons exist for that caution. The plaintiff retained full appeal rights to the District Court and to the Supreme Court on questions of law, mixed fact and law, and against convictions that cannot be supported, if he were ultimately convicted.

On the substantive issue, Cripps AJ found that the magistrate was entitled on the evidence before him to conclude that the police had not acted improperly. The fact that a FCAN could theoretically have been issued did not automatically render the arrest improper. Cripps AJ also distinguished DPP v Carr, noting that that case was concerned with whether it was open to a magistrate to exclude evidence in similar circumstances, and did not establish that exclusion was mandatory whenever a FCAN could have been used instead of an arrest.

The magistrate's alternative view, that even if impropriety were established the desirability of admitting the evidence would outweigh the undesirability, was noted but Cripps AJ declined to rest the decision on that basis, preferring to address the primary finding of no impropriety.

Orders Made

  • Application for leave to appeal dismissed.
  • Plaintiff to pay the defendant's costs.

Key Takeaways

  • A magistrate's ruling on admissibility of evidence during an ongoing Local Court proceeding is not necessarily an "interlocutory order" for the purposes of section 104(4) of the Justices Act 1902, particularly where the trial remains on foot and the ruling may yet be revisited.
  • The Supreme Court confirmed its general reluctance to intervene in trials in progress, absent exceptional circumstances, especially where the defendant retains full statutory appeal rights following any conviction.
  • Under section 138 of the Evidence Act 1995, a finding that police conduct was improper is a factual prerequisite to invoking the discretion to exclude evidence. No such finding is automatic merely because an arrest occurred in circumstances where a FCAN could have been issued.
  • DPP v Carr [2002] NSWSC 194 did not lay down a rule that arresting rather than issuing a FCAN constitutes impropriety as a matter of law. That decision addressed whether exclusion was open to a magistrate on particular facts, not whether it was compelled.
  • Sufficient evidence existed before the magistrate in this case to support his finding of no impropriety, and that finding was not one that no reasonable magistrate could have reached.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 138
- Crimes Act 1900 (NSW), s 58
- Summary Offences Act 1988 (NSW), s 4A(1)
- Director of Public Prosecutions Act 1986 (NSW), ss 9, 10
- Justices Act 1902 (NSW) (As Amended), s 104(4)

Cases:
- DPP v Carr [2002] NSWSC 194
- R v Bozatsas & Spanakis (1997) 97 A Crim R 296