AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 4 May 2021

R v Scott

[2021] NSWDC 342

Assault & violencePublic order & justice offences

Citation: R v Scott [2021] NSWDC 342
Court: District Court of New South Wales
Date: 4 May 2021
Judge: Bright DCJ

Background

The accused was charged with two counts arising from an incident on 18 February 2020 at a residential unit in Gosford. Two police officers attended the address to arrest the accused's partner in connection with a domestic violence matter. The accused answered the door and, after some exchange, attempted to prevent the officers from entering. One officer placed her foot in the door and police entered the unit.

During the ensuing confrontation, the accused was seen holding a knife. Officers deployed a Taser and OC spray and forced him to the ground. In the struggle, the accused kicked one officer's hand, fracturing her scaphoid bone, an injury requiring surgical fixation.

The accused was charged under s 60(3) of the Crimes Act 1900 (NSW) with causing grievous bodily harm to a police officer acting in execution of duty while reckless as to causing actual bodily harm, and in the alternative under s 60(2) with assault occasioning actual bodily harm. Before evidence was heard, the defence brought an application to exclude the evidence of both attending officers under s 138 of the Evidence Act 1995 (NSW).

  • Whether the officers' entry into the unit was lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), including whether the purpose of entry was lawful and whether the required reasons were given under ss 10 and 202 of LEPRA.
  • Whether the arrest of the accused's partner was lawful under s 99 of LEPRA, given that police had not yet decided whether to charge her at the time of arrest.
  • Whether the force used against the accused was lawful under s 231 of LEPRA, in that it was not reasonably necessary.
  • Whether, if the evidence was obtained in consequence of a contravention of an Australian law, the desirability of admitting it outweighed the undesirability of doing so under s 138(1)(b) of the Evidence Act.

Decision

The Court found that the arrest of the accused's partner was unlawful. Under s 99 of LEPRA, a police officer may arrest without warrant a person the officer suspects on reasonable grounds has committed an offence. The evidence established that the officers had not yet decided whether to charge her when they attended to arrest her. This was a contravention of LEPRA, and the entry into the unit, which was premised on that arrest, was therefore also unlawful.

The Court further found that police had not provided the required reasons for the exercise of their entry powers under ss 10 and 202 of LEPRA. Additionally, the force used in entering and restraining the accused in his own home was found not to have been reasonably necessary in the circumstances, constituting a further contravention of s 231 of LEPRA. The accused bore the onus of establishing these contraventions on the balance of probabilities, and the Court was satisfied he had discharged that onus.

Turning to the discretionary balancing exercise under s 138, the Court weighed the factors set out in s 138(3). The evidence was highly probative and important to the prosecution case. However, the Court placed considerable weight on the gravity of the contraventions. The police had unlawfully entered a private dwelling and exercised compulsive physical force against a person in his own home, resulting in serious consequences for the accused. The Court found the contraventions amounted to breaches of fundamental human rights recognised under the International Covenant on Civil and Political Rights, in particular the right to privacy in the home.

The Court held that the unlawful exercise of police powers of this kind undermines public confidence in the rule of law, because citizens have limited ability to resist such exercises of power. That public policy consideration, given the gravity of the contraventions, weighed in favour of exclusion. The Crown was not satisfied to establish that the desirability of admitting the evidence outweighed the undesirability. The evidence of both officers was excluded, leaving no evidence to sustain either count. The Crown conceded that directed verdicts of not guilty were appropriate in those circumstances.

Orders Made

  • Evidence of Leading Senior Constable Marks and Constable Kozaruk excluded pursuant to s 138(1)(b) of the Evidence Act 1995 (NSW).
  • Verdict of not guilty directed on Count 1 (causing grievous bodily harm to a police officer, s 60(3) Crimes Act 1900 (NSW)).
  • Verdict of not guilty directed on Count 2 (assault occasioning actual bodily harm to a police officer, s 60(2) Crimes Act 1900 (NSW)).

Key Takeaways

  • Under s 138 of the Evidence Act 1995 (NSW), the accused bears the onus of establishing on the balance of probabilities that evidence was obtained in consequence of a contravention of an Australian law; once that threshold is met, the Crown must satisfy the court that the desirability of admission outweighs the undesirability.
  • An arrest made under s 99 of LEPRA is unlawful where the arresting officer has not yet decided whether to charge the person, and entry into premises premised on that arrest is likewise unlawful.
  • Failure to comply with the requirements in ss 10 and 202 of LEPRA to state reasons when exercising entry and arrest powers constitutes a separate contravention capable of informing the s 138 balancing exercise.
  • The District Court treated the unlawful entry and use of force in a private dwelling as contraventions of a high order, engaging protections under the International Covenant on Civil and Political Rights, and regarded the resulting affront to public confidence in the rule of law as a significant factor favouring exclusion.
  • Where exclusion of improperly obtained evidence leaves no evidence capable of sustaining the charges, a directed verdict of not guilty is the appropriate consequence, as the Crown conceded in this case.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 138, 142
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 10, 99, 202, 231
- Crimes Act 1900 (NSW), ss 60(2), 60(3)
- Criminal Procedure Act 1986 (NSW)
- Charter of Human Rights and Responsibilities Act 2006 (Vic)
- Road Safety Act 1986 (Vic)

Cases
- Parker v Consul General of Customs (2009) 252 ALR 619; HCA 7
- State of New South Wales v Robinson (2019) 266 CLR 619; HCA 46
- DPP v Carr (2002) 127 A Crim R 151; NSWSC 194
- DPP v AM (2006) 161 A Crim R 219; NSWSC 348
- DPP v Coe [2003] NSWSC 363
- DPP (Victoria) v Kaba & Anor (2014) 247 A Crim R 300; VSC 52
- State of New South Wales v Bouffler (2017) 95 NSWLR 521; NSWCA 185
- State of New South Wales v Randall [2017] NSWCA 88
- Fleming v R (1998) 197 CLR 250; HCA 68
- Lippl v Haines (1989) 18 NSWLR 620
- R v Grech; R v Kadir [2017] NSWCCA 288
- R v Helmhout (2001) 125 A Crim R 257; NSWCCA
- Robinett v R (2000) 116 A Crim R 492; SASC 405