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Local Court 14 July 2022

NSW Police v Bowden

[2022] NSWLC 6

Firearms & weaponsPublic order & justice offences
CRIME HINDER POLICE IN EXECUTION OF DUTY POSSESSION OF GEL BLASTER PISTOL WHETHER ACCUSED HAD CONTROL OF PISTOL

Citation: NSW Police v Bowden [2022] NSWLC 6
Court: Local Court of NSW
Date: 14 July 2022
Judge(s): Nash LCM

Background

Police attended a rural property in Temagog to arrest a man for an alleged intimidation offence, having received a phone call from the property earlier that day. The accused, the man's girlfriend, told officers he was not present and had been dropped at the train station. Officers were sceptical of this account, given their knowledge of the local train timetable, and during their search of the property they found a gel blaster pistol on the ground near the accused's residence.

On a return visit minutes later, officers observed the man inside the residence. During the arrest that followed, the accused grabbed a police officer by the forearm, and had earlier given police a different surname when asked to identify herself.

The accused faced two charges: hindering a police officer in the execution of duty (sequence 1), and possessing a prohibited pistol, namely the gel blaster (sequence 2). She pleaded not guilty to both.

Legal Issues

  • Whether police breached section 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) by entering and remaining on the property, and whether that affected the admissibility of the evidence
  • Whether the accused's conduct, specifically grabbing an officer's arm and giving a false name, constituted a "hindrance" under section 546C of the Crimes Act 1900
  • Whether section 546C encompasses oral misrepresentations, or is limited to physical conduct
  • Whether the accused had "possession" of the gel blaster pistol at the time officers found it, given that it was lying near rubbish outside her residence

Decision

Issue 1: Lawfulness of the police entry and search under LEPRA

Nash LCM found that officers did not breach section 10 of LEPRA. The combination of the earlier phone call from the property, the implausibility of the accused's train station explanation, and an officer's observation of a male silhouette inside the residence gave police reasonable grounds to believe the man was in a dwelling on the property (at [44]-[45]). Neither visit exceeded a reasonable time: the first lasted around 15 minutes and the second around seven minutes (at [46]-[47]). The gel blaster was an incidental discovery made while officers were acting lawfully, and the body worn video footage was admissible (at [48]-[49]).

Issue 2: Whether the accused's conduct amounted to "hindering" police (Sequence 1)

The Magistrate accepted that the accused grabbed the officer's forearm during the arrest, but found this did not make the officer's duty "substantially more difficult" as required by the applicable test, drawn from Leonard v Morris (1975) 10 SASR 528 and endorsed in Taufahema v R [2006] NSWCCA 152. The arrest proceeded without incident, and the contact was fleeting and momentary (at [55]-[56]).

Issue 3: Whether giving a false name can constitute a "hindrance" under section 546C

The court held that section 546C is confined to physical conduct and does not extend to oral misrepresentations such as giving a false name (at [57]-[59]). Nash LCM reasoned that the Crimes Act 1900 contains numerous specific provisions dealing with false statements, and had the legislature intended false representations to constitute "hindering," it would have drafted section 546C accordingly (at [57]). The charge in sequence 1 was not proved beyond reasonable doubt and was dismissed (at [60]).

Issue 4: Possession of the gel blaster pistol (Sequence 2)

The court found the accused possessed the pistol at the time of its discovery. She had bought it, identified it by type, and it remained physically proximate to her residence on the property (at [67]-[68]). Nash LCM accepted that ownership alone does not establish possession, but held that where the accused retained ownership and could have physically retrieved the item at any time, she maintained the requisite control (at [69]). Had the pistol been removed from the property and destroyed so that she could no longer access it, the outcome may have differed, but on these facts the accused was found guilty (at [69]-[70]).

Orders Made

  • Sequence 1 dismissed: verdict of not guilty
  • Sequence 2 proved: verdict of guilty

Key Takeaways

  • Under section 546C of the Crimes Act 1900, the Local Court held that "hindering" a police officer in the execution of duty is confined to physical conduct. Giving a false name or making other oral misrepresentations to police does not satisfy the elements of that offence (at [57]-[59]).
  • The test for hindrance under section 546C requires that the officer's duty be made "substantially more difficult." Brief, momentary physical contact that does not impede an arrest from proceeding is insufficient to meet that threshold (at [55]-[56]).
  • Section 10 of LEPRA authorises entry to and continued presence on a property where an officer holds a reasonable belief, assessed by reference to all available information rather than any single factor, that the person to be arrested is in a dwelling (at [44]-[45]).
  • Possession in law requires intentional control over an object, together with knowledge of it. Ownership is not a prerequisite, but remaining ownership combined with close physical proximity can support a finding of continued control even where the owner has purportedly discarded the item (at [65]-[69]).
  • Where a prohibited item has merely been placed near rubbish but remains on the property and within easy reach of the owner, the court may find that possession continues. The position might differ if the item had been removed from the property and destroyed so that access was no longer possible (at [69]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
- Leonard v Morris (1975) 10 SASR 528
- R v Baird (1985) 3 NSWLR 331
- R v Cotterill (Court of Criminal Appeal (NSW), 7 June 1993, unrep)
- R v Galvin (No. 2) [1961] VR 740
- R v Micallef [2002] NSWCCA 480; 136 A Crim R 127
- R v Rondo [2001] NSWCCA 540; 126 A Crim R 562
- R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
- Taufahema v R [2006] NSWCCA 152