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District Court 24 August 2020

R v DB; R v AP

[2020] NSWDC 472

Assault & violencePublic order & justice offences
CRIME APPEAL AND REVIEW POWER TO ARREST WITHOUT WARRANT REQUIREMENTS OF S 99 LEPRA NOT MET POWER TO DETAIN INTOXICATED PERSONS WHETHER REQUIREMENTS OF S 206 LEPRA MET

Citation: R v DB; R v AP [2020] NSWDC 472
Court: District Court of New South Wales
Date: 24 August 2020
Judge: DCJ Yehia SC

Background

Two 15-year-old appellants were at Hornsby Railway Station on 5 April 2019 when police responded to reports of a fight. Officers detained both young persons on suspicion of involvement in an assault on a young female. Both appeared to police to be intoxicated or affected by some substance.

Police initially arrested one appellant (DB) but then released him without allowing him to leave the scene. Officers then decided, partly at the request of a parent, to convey both appellants home by police vehicle. When officers attempted to place the young persons into a caged police truck, both resisted. Upon arrival at the police station, one appellant (AP) allegedly lunged at an officer.

The Children's Court found both appellants guilty of resist police and, in AP's case, also assault police. The appellants appealed to the District Court, arguing that their detention was unlawful and that the officers were therefore not acting in the execution of their duty at the relevant times.

  • Whether the initial and secondary periods of detention of each appellant were lawful under ss 99 and 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)
  • Whether the requirements of s 99 LEPRA for a warrantless arrest were satisfied, including whether arrest was the measure of last resort
  • Whether the requirements of s 206 LEPRA, which authorises the detention of intoxicated persons, were met in the circumstances
  • Whether, if the detention was unlawful, the officers were "in the execution of their duty" so as to sustain convictions for resist and assault police
  • Whether police statements and body worn video footage should be excluded under s 138 of the Evidence Act 1995 (NSW) as evidence obtained in consequence of an impropriety or contravention of law

Decision

Lawfulness of the initial arrest under s 99 LEPRA

The District Court found that the initial arrest of DB by Sergeant Chapman did not comply with s 99 LEPRA. The section requires, among other things, that arrest be for the purpose of commencing criminal proceedings, not for the purpose of investigation or questioning. The Court observed that the principle of arrest as a measure of last resort is embedded in the legislation, and that the Children (Criminal Proceedings) Act 1987 (NSW) contains a statutory presumption that proceedings against children should be commenced without arrest. Neither condition was met on the evidence.

Lawfulness of the secondary detention under s 206 LEPRA

The Children's Court had found the secondary period of detention (conveying the appellants home) to be lawful under s 206 LEPRA, which permits detention of intoxicated persons. The District Court disagreed. The Court examined the body worn video footage and found it did not support a conclusion that the appellants were "intoxicated" within the meaning of the provision. More fundamentally, the Court found that the manner of detention, which involved multiple officers taking a child to the ground and forcing him into a caged police vehicle, was inconsistent with the protective purpose of s 206. The object of that provision is care and safe conveyance, not arrest and charge, and the circumstances here did not satisfy its requirements.

Execution of duty and the resistance offences

Because neither the initial nor the secondary detention was lawful, the officers were not acting in the execution of their duty at the times the appellants resisted or allegedly assaulted them. This is a necessary element of both offences. The failure of that element was fatal to the prosecution case.

Exclusion of evidence under s 138 Evidence Act

The Court also considered, as an alternative basis for its decision, whether the police statements and body worn video footage should be excluded under s 138 of the Evidence Act. The Court found the evidence was obtained in consequence of the unlawful detention. Although the impropriety was characterised as inadvertent rather than deliberate or reckless, the Court stated that ignorance of police powers does not negate the deterrent purpose of evidentiary exclusion, and that an onus rests on officers to understand the legislative provisions that authorise interference with individual liberty. The Court concluded the desirability of admitting the evidence did not outweigh the undesirability of doing so, and would have excluded it under s 138 had that been necessary.

Orders Made

  • The appeals of both DB and AP were upheld.
  • The orders of the Children's Court were set aside in each case.

Key Takeaways

  • The District Court held that an arrest under s 99 LEPRA must be for the purpose of commencing criminal proceedings; detention for the purposes of investigation or questioning does not satisfy the provision, and this requirement applies with particular force where the subject is a child.
  • Under s 206 LEPRA, the power to detain intoxicated persons is protective in character; using a caged police vehicle and physical force to detain minors is inconsistent with the section's purpose where the stated object is care and conveyance, not arrest.
  • Where police are not acting in the lawful execution of their duty, offences of resist police and assault police cannot be established, as lawful execution of duty is an essential element of each offence.
  • Evidence obtained in consequence of an unlawful detention may be excluded under s 138 of the Evidence Act even where the police conduct was inadvertent rather than deliberate; ignorance of statutory powers does not automatically reduce the weight of the public interest in exclusion.
  • The statutory presumption in the Children (Criminal Proceedings) Act 1987 (NSW) that criminal proceedings against children should be commenced without resort to arrest is a material consideration in assessing whether any given arrest was lawful.

Legislation and Cases Referenced

Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 105, 206
- Evidence Act 1995 (NSW), s 138
- Children (Criminal Proceedings) Act 1987 (NSW), s 8

Cases
- NSW v Robinson [2019] HCA 46
- Williams v R (1986) 161 CLR 278
- Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151
- Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219
- Director of Public Prosecutions v SB [2020] NSWSC 734
- Jankovic v Director of Public Prosecutions [2020] NSWCA 31
- R v Dalley (2002) 132 A Crim R 169
- R v Helmout (2001) 125 A Crim 257
- Al-Kateb v Goodwin (2004) 219 CLR 562
- ASIC v Macdonald (No 5) [2008] NSWSC 1169
- Fleet v District Court [1999] NSWCA 363
- Alla v Gleeson (Supreme Court (NSW), 25 October 1985, Roden J, unrep)