Citation: R v William John Bennett [2015] NSWDC 1
Court: District Court of New South Wales
Date: 6 February 2015
Judge: Mahony SC DCJ
Background
The appellant was convicted in the Local Court on 31 July 2014 of two offences: assaulting an officer in the execution of duty (s 58, Crimes Act 1900) and failing to appear (s 51(1), Bail Act 1978). Both convictions were dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, meaning no conviction was formally recorded, but the appellant nonetheless sought to appeal.
The incident arose on the evening of 28 January 2014 in Glebe, when three uniformed officers in a marked police vehicle observed the appellant standing on a footpath. The appellant appeared to raise his fists and puff out his chest toward the passing vehicle. The officers turned around and Constable Pollock approached the appellant on foot, asking why he had raised his fists.
The appellant began crossing the road. Constable Pollock followed, placed his hand on the appellant's shoulder, and the appellant then raised his fist in what the officer described as a cocked punching position. The officer responded with a leg sweep. The central dispute on appeal was whether Constable Pollock had already unlawfully arrested the appellant before that physical confrontation occurred, and whether the evidence arising from that encounter should have been excluded.
Legal Issues
- Whether Constable Pollock's words and conduct constituted a common law arrest of the appellant for offensive behaviour before the alleged assault occurred
- Whether that arrest, if it occurred, was lawful
- Whether the evidence of all three officers was "improperly obtained" within the meaning of s 138 of the Evidence Act 2005
- Whether, under the s 138 balancing exercise, the desirability of admitting that evidence outweighed the undesirability of admitting it given how it was obtained
- Whether, even absent the exclusion issue, Constable Pollock was acting in the execution of his duty when he placed his hand on the appellant's shoulder on the roadway
Decision
The District Court found that Constable Pollock had effected an unlawful common law arrest of the appellant. Although the officer denied intending to arrest him, his cross-examination evidence undermined that position: he said the appellant was "not free to leave just yet" and acknowledged he had stopped him because he had committed an offence, namely offensive behaviour. The court concluded this amounted to a deprivation of liberty constituting an arrest, and that the arrest was unlawful because the fist-raising conduct did not satisfy the legal definition of offensive behaviour.
Because the evidence of all three officers flowed directly from that unlawful arrest, it was evidence "obtained" within the meaning of s 138(1) of the Evidence Act. The alleged assault on Constable Pollock was an unintended consequence of the unlawful arrest rather than a purposive act, and there was a sufficiently close causal connection between the unlawful arrest and the subsequent conduct to engage the exclusion provisions.
Applying the s 138 balancing test, the court weighed the probative value of the evidence against the circumstances of its obtaining. The original conduct prompting the arrest was a summary offence only, and the arrest represented a gross and deliberate deprivation of the appellant's rights. The court held the balance came down firmly in favour of exclusion, and without that evidence the prosecution could not establish the elements of the s 58 offence.
As an alternative finding, the court noted that even if the exclusion analysis were wrong, the evidence did not establish that the appellant was a danger to himself or others when crossing the road. Accordingly, Constable Pollock's act of placing his hand on the appellant's shoulder was itself unlawful, meaning the officer was not acting in the execution of his duty at the relevant time. The assault charge would have failed on that basis too.
Orders Made
- The appeal was upheld.
- The conviction for assault of an officer in the execution of duty (s 58, Crimes Act 1900), entered 31 July 2014, was set aside.
- The conviction for failing to appear (s 51(1), Bail Act 1978) was set aside.
Key Takeaways
- A common law arrest does not require a formal declaration; the District Court found that telling a person they are "not free to leave just yet" and stopping them to investigate a suspected offence can be sufficient to constitute an arrest, regardless of the officer's stated intention.
- Under s 138 of the Evidence Act 2005, evidence obtained as a consequence of an unlawful arrest may be excluded even where the offence it is said to prove (here, assaulting police) arose incidentally from the arrest rather than being the target of the investigation.
- The s 138 balancing exercise is sensitive to the gravity of the underlying conduct that prompted police action: where an officer makes a gross and deliberate deprivation of liberty to investigate a minor summary offence, the scales are likely to tip toward exclusion.
- An officer who physically restrains a person without lawful authority, including by placing a hand on their shoulder, is not acting "in the execution of duty" for the purpose of an assault-police charge under s 58 of the Crimes Act 1900.
- Leave to appeal was granted in the interests of justice where the appellant had attempted to file within time but was incorrectly advised by the Registry that no right of appeal existed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 58
- Bail Act 1978 (NSW), s 51(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 2005 (NSW), s 138
Cases:
- Charara v R [2006] NSWCCA 244
- Coleman v Power (2004) 220 CLR 1
- DPP v AM [2006] NSWSC 348
- DPP v Araura [2012] NSWSC 1120
- DPP v Carr (2002) 127 A Crim R 151
- DPP v Gribble [2004] NSWSC 926
- DPP v Mathews-Hunt [2014] NSWSC 843
- DPP v Puskar (1992) 10 PettySR 4521
- Michaels v R (1995) 184 CLR 117
- NSW v Riley [2003] NSWCA 208
- R v Donohue (1988) 34 A Crim R 397