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District Court 6 August 2024

Davis v R

[2024] NSWDC 414

Public order & justice offences
CRIMINAL LAW AND PROCEDURE CONVICTION APPEAL “ARREST”

Citation: Davis v R [2024] NSWDC 414
Court: District Court of New South Wales
Date: 6 August 2024
Judge: D Barrow SC DCJ

Background

The appellant was stopped at a random breath test in February 2023. After passing a breath test, he returned a positive roadside drug test for cannabis. The officer told him they would need to travel to Grafton for a secondary test. The appellant, travelling with his partner and their four-day-old baby, refused to leave the car immediately, expressing concern about leaving his family stranded on the roadside.

After an extended standoff, during which the officer removed the car keys from the ignition and waited while the appellant helped assemble a pram for the baby, the appellant and his partner began walking toward the footpath. At that point, the appellant verbally abused the officer and walked away from him.

The officer then physically restrained and handcuffed the appellant, exercising his power of arrest. The appellant was subsequently charged with, and convicted in the Local Court of, resisting arrest under s 60(1AA) of the Crimes Act 1900. He appealed that conviction to the District Court.

  • Whether the officer had lawfully arrested the appellant at the time of the alleged resistance, such that the appellant could be convicted of resisting arrest
  • Whether the officer was required to expressly communicate to the appellant that he was under arrest, or to state the reason for the arrest, before the power of arrest was lawfully exercised
  • Whether the District Court, on a conviction appeal conducted as a rehearing on the evidence below, could identify error in the Local Court's findings sufficient to warrant overturning the conviction

Decision

The District Court conducted a rehearing on the evidence from the Local Court proceedings, including oral evidence from the officer, his written statement, and in-car video footage. The court noted significant discrepancies between the officer's statement and what the footage actually captured, finding that a substantial portion of the dialogue between the parties was missing from the statement.

The court found that, up until the point when the appellant finished placing his child in the pram, the situation remained ambiguous. No express statement of arrest had been made, and an available inference was that the appellant was simply expected to cooperate and accompany the officer, with arrest as a possible consequence if he refused. The court was not satisfied that the appellant was under arrest, or understood himself to be under arrest, at that earlier stage.

The position changed when the appellant verbally abused the officer and began walking away. Those actions communicated a clear intention not to cooperate, and it was at that moment that the officer acted to restrain and handcuff him. The court held, drawing on Christie v Leachinsky [1947] AC 573, that where a person's own conduct makes it practically impossible to inform them of an arrest, they cannot complain about the absence of that communication. The exigency created by the appellant's conduct meant the officer was not required to formally state that an arrest was occurring before physically effecting it.

The court concluded that the officer's actions in restraining and handcuffing the appellant were lawful, and that the appellant had resisted a lawful arrest. No error in the Local Court's decision was established.

Orders Made

• The appeal is dismissed
• The decision of the learned Magistrate is upheld

Key Takeaways

  • A conviction for resisting a police officer in the execution of duty under s 60(1AA) of the Crimes Act 1900 requires proof beyond reasonable doubt both that the defendant resisted and that the officer was acting lawfully at the time.
  • The District Court confirmed that an arrest need not be preceded by an express verbal statement where the arrested person's own conduct, such as verbal abuse and walking away, creates circumstances that make such a statement impractical.
  • Under the principle in Christie v Leachinsky, a person cannot complain that they were not informed of an arrest if they themselves produced the situation that made informing them practically impossible.
  • In dismissing the appeal, the court found that a roadside encounter may remain legally ambiguous, and that the moment of arrest may only crystallise when the arrested person's conduct makes their intention to resist plain.
  • Conviction appeals from the Local Court to the District Court are not de novo rehearings; the District Court forms its own view of the facts while recognising the magistrate's advantage in assessing witnesses, and will only intervene where error is demonstrated.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 60(1AA)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), including s 99 and s 202
- Road Transport Act 2013 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 3 Div 1, s 18

Cases
- Christie v Leachinsky [1947] AC 573
- R v Inwood [1973] 2 All ER 645
- State of New South Wales v Randall [2017] NSWCA 88
- Lunney v DPP [2021] NSWCA 186
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- R v Wong [2022] NSWDC 257
- R v Dungay [2007] NSWCCA 443
- NSW v Riley (2003) 57 NSWLR 496