Citation: VW v R [2021] NSWDC 208
Court: District Court of New South Wales
Date: 21 April 2021
Judge(s): Hunt DCJ
Background
The appellant, a 14 or 15-year-old Aboriginal girl referred to as VW, had been found guilty in the Children's Court of two counts of assaulting police officers in the execution of their duty. The charges arose from an incident at around 8:30 pm when police approached a vehicle that they believed to be stolen. VW was one of several young people inside the vehicle.
The arresting officer, Constable Field, recognised VW, confirmed her identity, and physically removed her from the vehicle to place her under arrest. A voir dire (a preliminary hearing to test the admissibility of evidence or the legality of a step in proceedings) was conducted in the Children's Court on the lawfulness of the arrest. The magistrate was ultimately satisfied that the arrest was lawful and convicted VW of both charges.
VW appealed to the District Court, arguing that the arrest was unlawful and that, as a result, the prosecution could not establish that the officers were acting in the proper execution of their duty, which is a required element of each offence.
Legal Issues
- What is the correct approach for the District Court conducting a conviction appeal by rehearing under s 18(1) of the Crimes (Appeal and Review) Act?
- Was the arrest of VW lawful under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)?
- Did Constable Field properly turn his mind to the relevant statutory criteria before arresting VW, including the provisions protecting vulnerable persons such as Aboriginal people and young persons?
- If the arrest was unlawful, could the prosecution establish beyond reasonable doubt that the officers were acting in the proper execution of their duty at the time of the alleged assaults?
Decision
The District Court first addressed the nature of the appeal. Under s 18(1) of the Crimes (Appeal and Review) Act, the appeal proceeds by way of rehearing on the evidence given in the Children's Court proceedings. This is not a hearing entirely afresh (de novo). The approach is analogous to a civil appeal under s 75A of the Supreme Court Act, as described in Fox v Percy (2003) 214 CLR 118: the appellate court forms its own view of the facts while recognising the advantage the magistrate had in seeing and hearing witnesses.
On the central issue of the lawfulness of the arrest, Hunt DCJ focused on Constable Field's police statement and his early evidence in chief, given before he was on notice that the legality of the arrest was in dispute. That evidence revealed that, as soon as the vehicle was identified as stolen, the constable formed a settled intention to arrest its occupants. When asked about his purpose after removing VW from the vehicle, the constable said the intention was to find out why the occupants were in the vehicle. The District Court found this consistent with arrest for the primary purpose of investigation, which is unlawful under Jankovic v DPP [2020] NSWCA 31.
Hunt DCJ was also not persuaded that Constable Field had turned his mind to s 99(1)(B) of LEPRA and the factors it requires an officer to consider, including whether arrest was necessary in the circumstances. Critically, the constable knew at the time of the arrest that VW was Aboriginal and was approximately 14 or 15 years of age. Both attributes attract specific protections under LEPRA as "vulnerable persons," and s 8 of the Children and Young Persons (Criminal Proceedings) Act was also engaged. The offence under investigation was, at its most serious, a fine-only offence, making the failure to consider alternatives to arrest all the more significant.
Because the arrest was unlawful, the District Court concluded that it could not be satisfied beyond reasonable doubt that the officers were acting in the proper execution of their duty at the relevant time. That element being unproven, both charges could not be sustained and the appeal was upheld.
Orders Made
- The appeal was upheld.
- All orders made by the Children's Court magistrate were set aside.
Key Takeaways
- The District Court confirmed that a conviction appeal by rehearing under s 18(1) of the Crimes (Appeal and Review) Act requires the appellate court to form its own view of the facts, while giving appropriate weight to the advantages the original tribunal had in observing witnesses.
- A police officer's intention, at the time of arrest, is the critical question when assessing lawfulness under s 99 of LEPRA; evidence given before a dispute about legality arises may carry particular weight in assessing that intention.
- Arresting a person for the primary purpose of investigating an offence is unlawful, as confirmed by the Court of Appeal in Jankovic v DPP [2020] NSWCA 31 and applied here.
- Where the arrested person is both Aboriginal and a young person, LEPRA's "vulnerable persons" provisions and the Children and Young Persons (Criminal Proceedings) Act impose heightened obligations on the arresting officer to turn their mind to alternatives to arrest, particularly when the offence under investigation is minor.
- Sufficient doubt about the lawfulness of an arrest will defeat a charge of assaulting police in the execution of their duty, because proper execution of duty is an element the prosecution must prove beyond reasonable doubt.
Legislation and Cases Referenced
Legislation
- Children and Young Persons (Criminal Proceedings) Act, s 8
- Crimes (Appeal and Review) Act, ss 18, 19
- Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), ss 99(1)(B), 99(3)
- Supreme Court Act, s 75A
Cases
- Dyason v Butterworth [2015] NSWCA 52
- Engelbrecht v DPP (NSW) [2016] NSWCA 290
- Fox v Percy (2003) 214 CLR 118
- Jankovic v DPP [2020] NSWCA 31