Citation: Rowlands v R [2021] NSWDC 723
Court: District Court of NSW
Date: 17 November 2021
Judge: P Taylor SC DCJ
Background
The appellant was convicted in the Local Court of two summary offences: using offensive language in a public place, and resisting a police officer in the execution of his duty. Both offences arose from a single incident at a Bondi Junction shopping centre in November 2019, where the appellant approached two police officers who were dealing with an unrelated third party.
The appellant, who had no prior criminal history, disputed that he used the offensive language alleged. The resisting charge arose from him striking away an officer's arm as he was being pushed backwards toward an escalator. CCTV footage and body-worn camera recordings were in evidence, along with the testimony of both officers and the appellant.
The Magistrate accepted that all witnesses were honest and convicted. The appellant appealed to the District Court by way of rehearing on the evidence before the Magistrate.
Legal Issues
- Whether the Magistrate's repeated question "why would the police lie?" constituted an impermissible reversal of the onus of proof
- Whether the prosecution had established the offensive language charge beyond reasonable doubt, having regard to the CCTV footage and the possibility of police misattribution between the appellant and the third party
- Whether the appellant's physical response to being pushed by an officer satisfied the requirements of self-defence
- Whether the arrest was lawful under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), and whether unlawfulness of the arrest was an element of the resisting charge that the prosecution was required to prove
Decision
The District Court upheld the appeal and quashed both convictions. Central to the Court's reasoning was the Magistrate's repeated framing of "why would the police lie?" as a basis for accepting the officers' evidence. The Court held that this approach was unhelpful and inappropriate, as it effectively reversed the burden of proof by requiring the appellant to provide an explanation for false or mistaken police testimony.
On the offensive language charge, the Court identified several independent reasons for reasonable doubt. The CCTV footage showed no reaction from nearby members of the public consistent with loud or offensive language being used. The prosecution conceded the footage did not show intoxication, undermining an officer's evidence about the appellant's demeanour. The Court also noted the real possibility that the officers, recollecting events sometime later, may have conflated the appellant's words with the swearing of the unrelated third party, who was also present and was separately arrested.
On the resisting charge, the Court accepted a self-defence analysis. There was a reasonable possibility that the appellant believed his conduct was necessary to defend himself when an officer aggressively pushed him backwards, and that his response, knocking the officer's arm away, was reasonable in the circumstances as he perceived them. That finding was sufficient to dispose of the charge. The Court expressly declined to resolve the separate question of whether the prosecution was required to prove the lawfulness of the arrest beyond reasonable doubt as an element of the offence.
The Court set aside both convictions and entered not guilty findings on each charge.
Orders Made
- The conviction appeal is upheld
- The convictions and orders of Magistrate Greenwood made on 9 June 2021 are set aside
- The appellant is found not guilty on both charges
- Liberty granted to the appellant to apply for costs by email within 7 days
Key Takeaways
- A Magistrate's repeated reliance on the question "why would the police lie?" as a reason to accept police evidence was found to be an impermissible reasoning process, as it effectively shifted the burden of proof onto the defendant to explain away the officers' account.
- Where a defendant has no prior criminal history, good character carries two distinct presumptions: it enhances the credibility of the defendant's own evidence and makes commission of the alleged offences less likely.
- The standard of beyond reasonable doubt means that even if a defendant's account is rejected, a court must still ask independently whether the prosecution evidence positively establishes guilt to that standard.
- Inaccurate police testimony need not imply deliberate dishonesty. The District Court noted that recollections of conversations are notoriously unreliable in detail, and the presence of a third party who also swore at officers created a credible risk of misattribution.
- Self-defence was available to the appellant on the resisting charge where there was a reasonable possibility he believed his physical response was necessary to defend himself against an officer's aggressive push, and his response was reasonable in the circumstances as he perceived them.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99
Cases
- Dyason v Butterworth [2015] NSWCA 52
- Lim v R (2017) 25 DCLR (NSW) 253; [2017] NSWDC 231
- Monis v R; Droudis v R (2013) 249 CLR 92; [2013] HCA 4
- Police v Paton [2009] NSWLC 34
- R v Jovanovic (1997) 42 NSWLR 520