Citation: Filip Black v Regina [2017] NSWDC 326
Court: District Court of New South Wales
Date: 20 November 2017
Judge: Judge AC Scotting
Background
The appellant was stopped by police while walking through Centennial Park on a cold morning in July 2016. He was wearing a black hoodie and carrying a backpack fitted with a camera that recorded most of the ensuing exchange. Police questioned him about his presence in the area, and the interaction quickly became contentious.
When asked what he was doing, the appellant responded with a profanity. Constable Ritchie arrested him for offensive language but later withdrew the arrest, partly because the constable himself used comparable language during the exchange. Despite withdrawing the arrest, the officer told the appellant he was not free to leave and proceeded to search him. The stated basis for the search was that the area was "renowned for break-ins" and that the appellant had been uncooperative. The officer also repeatedly pressed the appellant for identification, even after conceding he had no legal right to demand it.
At the end of the search, after being told to leave, the appellant made two remarks. The second, which was not captured on the recording, was found by the Magistrate to constitute offensive language, and the appellant was convicted. He appealed to the District Court.
Legal Issues
- Whether the Magistrate erred in convicting the appellant of using offensive language contrary to section 4A of the Summary Offences Act 1988
- Whether the words spoken at the conclusion of the search were objectively offensive in the circumstances
- Whether the police search under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) was lawfully conducted, and whether that affected the analysis
- Whether the appellant had a reasonable excuse for the offensive language, having regard to the conduct of police throughout the encounter
Decision
Judge Scotting conducted the appeal as a rehearing on the certified transcript, applying the principles from Charara v R and Fox v Percy: the appellate judge must form an independent view of the facts while acknowledging that the Magistrate had the advantage of seeing and hearing witnesses.
The District Court agreed with the Magistrate that the appellant was no longer being detained when the disputed words were spoken and that the evidence had not been unlawfully obtained so as to warrant exclusion. However, the Court found that the initial arrest for offensive language was unlawful because the officer did not turn his mind to whether an alternative method of dealing with the matter was available. The Court also found the search was of doubtful lawfulness: the only proper basis for reasonable suspicion was that the area was allegedly prone to break-ins, but no supporting evidence was produced. Refusing to provide identification, and generally insisting on one's legal rights, cannot form a proper basis for reasonable suspicion under LEPRA.
The core finding that led to the appeal being allowed concerned the reasonable excuse defence. The Court observed that the officer had detained the appellant for 10 to 15 minutes, repeatedly demanded identification he had no right to require, and conducted the encounter with little regard for the appellant's rights. The Court found that it was the prolonged and unjustified interference with the appellant's civil liberties that ultimately produced the offensive language. In all the circumstances, the appellant was entitled to be upset, and the Court was satisfied he had a reasonable excuse for the language used.
Orders Made
- Appeal against conviction allowed
- Conviction and penalty imposed by the Magistrate set aside
Key Takeaways
- A reasonable excuse under section 4A of the Summary Offences Act 1988 is an evaluative question depending on the circumstances; a court must consider the full context of the encounter, not merely the words in isolation.
- Where police detention is underpinned by conduct that unjustifiably interferes with a person's civil liberties, that conduct can inform whether a reasonable excuse exists for language that follows.
- Under LEPRA, a person's refusal to provide identification (which is not legally required) and their insistence on legal rights cannot constitute a proper basis for reasonable suspicion authorising a search.
- A police officer's power to conduct a search under statute must be exercised in strict compliance with that power; the principles from Henderson v O'Connell and Kuru v State of New South Wales confirm that no common law right exists to continue a trespassory investigation once the statutory basis for it ends.
- The District Court confirmed that it may allow an appeal and substitute its own decision where the appellant demonstrates legal, factual, or discretionary error, consistent with Dyason v Butterworth and related authorities.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001, s 18(1)
- Law Enforcement (Powers and Responsibilities) Act 2002, ss 21, 23, 23A, 24, 30, 32
- Summary Offences Act 1988, s 4A
Cases
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Dyason v Butterworth [2015] NSWCA 52
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Bandana v Director of Public Prosecutions [2016] NSWCA 140
- Englebrecht v Director of Public Prosecutions [2016] NSWCA 290
- Dalton v Bartlett (1972) 3 SASR 549
- Dowse v New South Wales [2012] NSWCA 337
- Coleman v Power (2004) 220 CLR 1
- Taikato v The Queen (1996) 186 CLR 454
- Henderson v O'Connell [1937] VLR 171
- Noordof v Bartlett (1986) 12 FCR 209
- Kuru v State of New South Wales (2008) 236 CLR 1
- R v Rondo [2001] NSWCCA 540
- Straet v Bauer NSWSC (unreported, 16 March 1998)