AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 6 August 2024

Rainbow v R

[2024] NSWDC 632

Assault & violencePublic order & justice offences
CRIME CRIMINAL LAW AND PROCEDURE ALL GROUNDS CONVICTION APPEAL CONVICTION APPEAL ALLOWED APPELLANT NOT GUILTY

Citation: Rainbow v R [2024] NSWDC 632
Court: District Court of New South Wales
Date: 6 August 2024
Judge: D Barrow SC DCJ

Background

The appellant was convicted in the Grafton Local Court of two offences under the Crimes Act 1900: hindering a police officer in the execution of his duty and assaulting a police officer in the execution of his duty. She was fined $1,000 for the hindering offence and convicted without further penalty for the assault offence.

The offences arose when two police officers attended the appellant's home looking for a man named Kayo Skinner, who was allegedly wanted for breach of bail. The senior officer (Senior Constable Kim) entered the premises, located Skinner inside, and attempted to arrest him. Skinner fled through the back door. The appellant physically interposed herself between the officer and Skinner during this pursuit, giving rise to both charges.

The appellant appealed her convictions to the District Court on all grounds. The central dispute was whether the officer had lawfully entered the premises, and therefore whether he was acting "in the execution of his duty" at the time of the alleged offences.

  • Whether Senior Constable Kim had lawfully entered the appellant's home, or had committed a trespass by opening the door without knocking, seeking permission, or announcing his presence.
  • Whether, having entered unlawfully, the officer was "acting in the execution of his duty" for the purposes of the offences under s 60(1) and s 60(1AA) of the Crimes Act 1900.
  • Whether the Local Court's factual findings were undermined by the further evidence (body worn camera footage from Constable Maharaj) admitted on the appeal.

Decision

The court admitted body worn camera footage from Constable Maharaj, a second officer who had been unavailable at the Local Court hearing. That footage was decisive. It plainly established that Senior Constable Kim had not knocked on the front door, had not sought permission to enter, and had not announced his name or purpose before opening the door. The court found his sworn evidence to the contrary was incorrect, whether deliberately or by mistake.

The court found that by opening the closed (but unlocked) front door without any prior knock, announcement, or permission, Senior Constable Kim had committed a trespass. It applied the principle from Halliday v Neville [1984] HCA 80, in which Brennan J held that a lawful forced entry requires at minimum that entry has been demanded and refused by an occupier. No such demand had been made here.

Because the officer was committing a trespass when he entered, he was not acting in the execution of his duty at the relevant time. "Execution of duty" is an essential element of both charges. The court was therefore not satisfied beyond reasonable doubt that this element was established, and the convictions could not stand.

The court noted that the Local Court magistrate's factual findings on this point were entirely undermined by the Maharaj footage, which had not been available at first instance. This constituted the error grounding the successful conviction appeal.

Orders Made

  • The appellant's conviction appeal is allowed.
  • The convictions for Hinder Police in the Execution of Duty and Assault Police in the Execution of Duty are quashed.
  • In lieu of those convictions, the appellant is not guilty of both charges.

Key Takeaways

  • A conviction under s 60(1) or s 60(1AA) of the Crimes Act 1900 requires proof beyond reasonable doubt that the officer was acting "in the execution of his duty" at the time of the alleged offence; where that element is not established, the charge cannot succeed.
  • The District Court confirmed that a police officer who enters premises by simply opening a closed door without knocking, seeking permission, or announcing their presence commits a trespass, and is not acting in the execution of their duty in doing so.
  • Under the approach in Halliday v Neville, a lawful entry by force into premises requires, at minimum, that entry has been demanded and refused by the occupier.
  • In a conviction appeal from the Local Court, the District Court may admit further evidence not available below; where that evidence squarely contradicts the factual foundation of the original conviction, it can establish the error required to quash that conviction.
  • New evidence admitted on appeal had the effect of discrediting the arresting officer's sworn account in significant respects, demonstrating the potential importance of body worn camera footage from all officers present at an incident.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 60(1), 60(1AA)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18

Cases
- Lunney v DPP [2021] NSWCA 186
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- R v Wong [2022] NSWDC 257
- R v King (1993) 118 ALR 596
- Halliday v Neville [1984] HCA 80; 155 CLR 1
- Entick v Carrington (1765) 19 St Tr 1029
- Great Central Railway Co v Bates [1921] 3 KB 578